Web referencing has become a major strategic issue for companies of all sizes. However, this growing importance is accompanied by an increase in disputes between SEO service providers and their customers. In recent years, the French courts have had to deal with numerous disputes, revealing the areas of friction and misunderstanding that can arise in these commercial relationships. This article analyzes the main recent case law on SEO and suggests contractual solutions to prevent these contentious situations.
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Anatomy of SEO disputes: the main points of contention
A review of legal decisions handed down in recent years reveals several recurring sources of conflict between SEO service providers and their customers.
The promise of specific results
The typical dispute between customers and SEO service providers concerns promises of positioning in search results. Many disputes arise from ambitious commercial guarantees that clash with the technical reality of search engine optimization and the constant evolution of algorithms.
In a noteworthy ruling by the Paris Court of Appeal on March 14, 2023, the judges recalled that a service provider who had contractually undertaken to position his client "on the first page of Google" for specific keywords, without qualifying this commitment with an obligation of means, exposed himself to the termination of the contract in the event of failure, even if this failure was due to an update of the search engine's algorithm.
This decision confirms the importance of precisely qualifying the nature of the service provider's obligations in a solid SEO contract, favoring an obligation of means rather than an obligation of result that is difficult to guarantee in an environment as fluctuating as that of search engines.
Transparent methods
Another frequent cause for dispute concerns the SEO techniques used by service providers. Several recent rulings have penalized SEO agencies for implementing controversial practices ("black hat SEO") that resulted in penalties for their clients.
In a ruling handed down on September 6, 2022, the Lyon Commercial Court ordered a search engine optimization (SEO) agency to compensate a client penalized by Google following the use of artificial netlinking techniques. The judges ruled that the service provider had failed in its duty to advise by not alerting its client to the risks associated with these practices.
This case law underlines the importance of including a clause in your contract detailing precisely which methods are authorized and which are prohibited, as well as an obligation to be transparent about the techniques used.
Ownership of content and technical optimizations
Intellectual property is the third major stumbling block in relationships between customers and SEO providers. Who owns the rights to content created to improve SEO? What happens to technical optimizations in the event of breach of contract?
In a ruling handed down on November 21, 2023, the Versailles Court of Appeal ruled in favor of a customer who claimed ownership of the editorial content created by its SEO service provider. The judges considered that the contract, although silent on this specific point, necessarily implied a transfer of copyright, given its purpose.
This decision, which may seem favorable to customers, actually creates legal uncertainty for all parties. It is a reminder of the importance of explicitly stipulating the fate of intellectual creations in the initial contract, to avoid any ambiguity.
Case studies: lessons from recent litigation
Let's take a closer look at a few emblematic cases that offer valuable lessons for drafting your SEO contracts.
Case 1: Requalification of an obligation of result
Background and decision
Company X had signed a contract with an SEO agency which undertook to "guarantee a presence on the first page of Google for 15 strategic keywords". After six months of collaboration with no convincing results, company X stopped paying the invoices. The agency sued for payment, arguing that it had deployed all necessary means and that the evolution of Google's algorithm had compromised the achievement of its objectives.
The Nanterre Commercial Court (judgment of January 12, 2024) ruled in favor of the customer, considering that the wording of the contract unambiguously established an obligation of result that the agency had not fulfilled, irrespective of the reasons for this failure.
Contract teaching
This decision is a reminder of the crucial importance of the terms used when drafting objectives. To avoid this type of situation, we recommend :
- Clearly formulate the nature of the commitment (obligation of means)
- Specify that results depend on external factors that cannot be controlled
- Include an adaptation clause in the event of substantial changes to algorithms
- Plan alternative performance indicators (traffic, conversion rate, etc.)
Case 2: Liability in the event of a Google penalty
Background and decision
An SME in the fashion sector saw its website delisted following massive netlinking practices implemented by its SEO service provider. The company sued the SEO provider, claiming compensation for lost sales.
The Bordeaux Court of Appeal (ruling of March 8, 2023) partially upheld this claim, finding that the service provider had committed a fault by using risky methods without expressly informing his customer. However, the court limited the amount of compensation, considering that the professional client could not have been totally unaware of the risks associated with aggressive referencing techniques.
Contract teaching
This nuanced case law underscores the importance of :
- Detail the SEO techniques to be used
- Formalize the customer's agreement to these methods after full information
- Establish a regular validation process for actions taken
- Include a clause limiting the service provider's liability in the event of penalties, subject to compliance with its obligation to provide information.
Case 3: Dispute over ownership of technical optimizations
Background and decision
A company had entrusted the technical optimization of its website to an SEO consultant. After the end of their collaboration, the service provider deactivated some of the technical optimizations he had implemented, causing a drop in the site's ranking. The company sued him for sabotage.
The Tribunal de Grande Instance de Paris (judgment of May 17, 2022) ruled in favor of the customer, holding that the technical optimizations, once integrated into the site, became the property of the customer. The court ruled that the service provider had committed a fault by deliberately deactivating these elements after the end of the contract.
Contract teaching
This decision highlights the importance of :
- Establish a documentation and knowledge transfer process
- Clearly define the scope of services and their permanent or temporary nature
- Planning the transition at the end of the contract
- Distinguish between the provider's proprietary tools and site-integrated optimizations
Preventive clauses to avoid contentious situations
In the light of this case law, a number of contractual provisions are essential to secure the relationship between customer and SEO provider.
Precise qualification of obligations
The first preventive measure is to characterize unambiguously the nature of the service provider's commitments:
"The Service Provider undertakes to use all technical and human resources necessary to improve the positioning of the Customer's site in the natural results of search engines. This obligation is expressly qualified as an obligation of means, as the Service Provider cannot guarantee a specific positioning given the constant changes in referencing algorithms and competition on the targeted keywords."
Methodological transparency clause
To prevent disputes relating to the techniques used :
"The Service Provider undertakes to use only SEO techniques that comply with the best practices recommended by search engines ('white hat SEO'). A detailed description of the methods used is appended to this contract. Any significant change in these methods will be subject to the Customer's prior information and express agreement."
Intellectual property clause
To clarify the fate of content and optimizations :
"Textual content created by the Service Provider as part of its mission is subject to an exclusive transfer of copyright to the Customer as soon as it has been validated and put online. Technical optimizations integrated into the site remain the property of the Customer after the end of the contract. On the other hand, analysis and monitoring tools developed specifically by the Service Provider remain its exclusive property."
Algorithm adaptation clause
To anticipate frequent changes in the rules of the game:
"In the event of substantial modification of search engine algorithms significantly affecting the initially agreed referencing strategy, the Parties undertake to meet within a fortnight to adapt the action plan and, if necessary, the associated performance targets."
Preferred alternative dispute resolution methods
In addition to preventive clauses, it's a good idea to include amicable dispute resolution mechanisms in your contract.
Prior mediation
Mediation is particularly well-suited to referencing disputes, where the technical aspects and continuity of the relationship may take precedence over the strict application of contractual provisions:
"In the event of a dispute relating to the performance of the present contract, the Parties undertake to seek an amicable solution. Failing agreement within thirty days, they agree to have recourse to a mediator specialized in digital disputes, appointed by mutual agreement or, failing that, by [specialized organization]."
Independent technical expertise
For disputes concerning the technical aspects of referencing, the intervention of an independent expert can defuse many conflicts:
"In the event of disagreement as to the conformity of the techniques employed or the interpretation of the results obtained, the Parties may seek, prior to any legal proceedings, the opinion of an independent expert appointed by mutual agreement from among the certified members of [recognized professional association]. The costs of the expert opinion shall be shared equally by the Parties."
Prevention through contracts, the best guarantee against disputes
This recent case law underlines the crucial importance of a well-drafted referencing contract, clearly specifying the obligations of each party. Careful drafting of the above-mentioned clauses is a modest investment in view of the potential costs of litigation and its consequences for your digital strategy.
Given the growing complexity of SEO techniques and the constantly evolving legal framework, the support of a digital law professional is often decisive in securing your SEO strategy and preventing litigious situations.
By anticipating potential areas of friction and formally defining mutual commitments, you can transform your referencing contract into a genuine tool for managing your online visibility, in support of your business development.
