Could SEO Constitute Unfair Competition?

1. In the dispositions Gong-Chu-Zi No. 111019 and No. 111020 issued on April 21, 2022, the Taiwan Truthful Trade Fee (TFTC) held that Mobix Company and Kuo Brothers (hereinafter referred to as ”the Companies”) especially intended the Search engine marketing webpage software with titles and languages promoting “products not marketed on their website” constituted functions which are “otherwise have any deceptive or clearly unfair carry out that is in a position to have an impact on investing purchase,” ended up in violation of Posting 25 of the Honest Trade Act. Administrative fines of NT$800,000 and NT$2,000,000 were being imposed respectively.

2. Details of the Circumstance:

The Seo webpage system specifically made by the providers generates advertisement webpage titled “Summary of Warm-providing XX word-of-mouth Suggestions,” “Are you on the lookout for XX? Recommending tremendous-value XX. Open and transparent article-buy merchandise evaluations. Quick shipping with a seven-day no-burden absolutely free return interval,” “The XX that absolutely everyone is shopping for is readily available at (the web site of the businesses) …,” and introduced these adverts in search success. On the other hand, the similar items (i.e., the aforementioned “XX”) had been, as a matter of reality, not sold at the purchasing web page of the organizations. That staying explained, the content material as shown in the research effects misrepresented the information. The TFTC then requested the stop therefrom and imposed administrative fines pursuant to Article 25 of the Truthful Trade Act.

3. Disposition Rationale:

(1) The TFTC reasoned that, in these scenarios, “the companies applied the layout of webpage program to unfairly exploit the representation of other folks for the objective of raising the level of visits paid out to their personal web-sites,” which have been indeed exploitations of the work of others. The TFTC even further reasoned that considering the fact that the companies’ websites were being “shopping sites,” making use of a particular representation was not at problem (implying that its function was not to exploit the enterprise status of many others). Somewhat, the goal was to build an overall look of “a purchasing website with all the things and with terrific discount.”

(2) The companies’ procuring internet sites did not provide the “XX product” as purported by the titles and written content of their commercials. Consequently, the companies’ internet websites induced “the people to not remaining in a position to receive essential transaction info from the aforementioned representation of XX on the buying site by the one-way links, resulting in required waste of time,” and “unfair interception of customer website traffic to other similar buying web-sites.” In addition, the organizations allowed the continuing prevalence and existence of this sort of faulty and deceptive facts with no any avoidance or correction, resulting in unfair level of competition by way of clearly unfair conducts that are becoming equipped to have an impact on investing get.

4. Assessment:

(1) The situations contain the use of Search engine optimisation methods to make improvements to research outcome position. Additional researching the cases, the issue that ought to be carefully evaluated is whether the act of “using the representations of other folks to form titles and articles of ad which gave people the improper perception that its browsing internet site was selling associated products, resulting in the increase of people to its browsing web-site and transaction opportunities” constitutes unfair levels of competition. Arguably, there is home for the discussion of phony adverts in the cases.

(2) The author argues that the problem should not be “the system of working with particular articles (regardless of whether it is of goods offered on the buying web site or not) or indicates to boost web page rating.” Rather, the challenge must be “misleading consumers by wrong info.”

(3) Though the disposition rationale of the TFTC described that these investing tactics experienced the impact of “intercepting traffic to other sites,” the creator argues that research final result ranking for each se previously has the impact of producing reduce ranked sites to have much less website traffic. Appropriately, the portion that should really be blamed for was the articles of their internet site, not the Seo effects. That becoming stated, if any company made use of the illustration of some others as their key phrase (or other information as determined by Search engine optimisation), but the site did not clearly show such illustration or other facts that have been applied to mislead people, then, while Search engine optimisation strategies aided them “intercept targeted traffic to other websites” by relocating their rating larger, it did not pertain to unfair competitiveness. (For related judicial views, see a judgment manufactured by Mental Home and Business Court docket in 2020 Min Gong Shang Zi No. 1)

Marcy Willis

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