If you are a company that has been banned from Google for allegedly rigging search engine results on behalf of your clients, and people throughout the industry are talking smack about you, what do you do?
You retain a lawyer and sue, claiming theft of trade secrets and libel.
Media Hack
At least, that's what Traffic-Power.com, a Las Vegas-based search engine placement firm, did last month, filing lawsuits against Aaron Wall's SEO Book.com and Traffic Power Sucks, both of which have posted volumes of negative comments about the company.
Although large commercial web publishers are generally protected from liability over third-party comments posted on their websites, it's unclear whether the same rules apply to everyone. According to a recent report in The Wall Street Journal, the case is being watched closely for its wider potential impact, particularly among bloggers.
But some lawyers are already drawing a much narrower conclusion, namely, that the sole purpose of the suit is to harass and intimidate those who have criticized a company that has long been under fire for engaging in what many view as deceptive business practices.
"I think the attorneys who file such lawsuits abrogate their duties," said Eric Goldman, an assistant professor of Law at Marquette University Law School. "However, it remains very typical for these threats to be made and these lawsuits to be brought," because "plaintiffs think they can bully websites and blogs into doing what they want."
Kurt Opsahl, an Electronic Frontier Foundation attorney focusing on civil liberties, free speech and privacy law, agrees. Traffic-Power.com's lawsuit "appears ripe for an anti-Slapp motion," which, if successful, would strike it down. Slapp stands for "strategic lawsuits against public participation" -- suits that have no merit but are brought by companies to silence critics by forcing them to burn through money to pay for legal defense.
For Aaron Wall, whose blog is a popular destination for those in the search-engine optimization industry, his troubles began in May 2004, when he blogged about telling off a telemarketer who had called him on behalf of Traffic-Power.com. "Would you buy a diamond from a person who cold-called you?" Wall wrote. "Would you bet your financial future on a random telemarketer who knew nothing about marketing or your life?"
He pointed to "an almost nuclear trifoil-type-looking symbol" that at the time appeared on the client's page on Traffic-Power.com's website, which said, "you have reached this page in error." Indeed, Wall wrote, "being on the Traffic-Power client list is an error."
This post spawned a sea of negative posts about Traffic-Power.com from Wall's readers (his site receives about 100,000 pageviews a month). "I recently got scammed by Traffic-Power," wrote one, claiming his site was banned from Google, Traffic-Power.com continued to send him "reports from search engines nobody uses," the company's sales representatives were "hostile" and even "harassed" him, and if he did not renew "threatened to sell the scam phantom site" it created to his competitors.
Other posters referred to Traffic-Power.com as "a joke," "scammers" and "crooks" who employ "doorway pages and cloaking," both of which are frowned upon by legitimate search engine optimizers. Not only had Google banned the company for "spammy" techniques, it also blacklisted its clients, which was leading to a windfall for search engine optimizers retained to clean up the mess.
Wall, responding to someone who claimed to have worked for the company, wrote, "I would need to shower at least six times a day if I worked for a company as dirty as Traffic-Power."
A few months later, Wall took on Traffic-Power.com again, claiming the company was sponsoring fake search-engine optimization forums to attack its critics. "Almost every site that was covered on these fake forums was known to be related to a site owner that had an open a forum thread or page which mentioned Traffic-Power in a critical light," Wall said. One giveaway: "All the comments were from new forum posters and spaced out about three minutes apart."
After that, Wall says he forgot about Traffic-Power.com until last July, when he received a cease-and-desist letter from Max Spilka, a Las Vegas attorney. Spilka, who declined to comment for this column, accused Wall of publishing "proprietary and confidential information related to Traffic-Power.com's business" that was "pirated from Traffic-Power" and which Wall obtained "illegally."
Spilka also demanded that Wall provide a list of the sources of his information and remove all information related to Traffic-Power.com from his website -- or the company would seek damages that could exceed $1 million.
Wall couldn't figure out what Spilka was talking about. What confidential information? he wondered. He asked Danny Sullivan -- the managing editor of Search Engine Watch, who Wall calls "god of search" -- to look into it. Sullivan contacted Traffic-Power.com's PR firm and published an article about it. The upshot was that Sullivan couldn't discern which trade secrets Traffic-Power.com was referring to either.
Then, on Aug. 11, Spilka filed suit in a Nevada court, alleging defamation and theft of trade secrets.
Not surprisingly, Traffic-Power.com's attack has also rankled some of Wall's peers. Greg Boser of WebGuerrilla, a search marketing consultancy, points out that it's impossible to protect a search engine optimization trade secret because "the secret is in the HTML code that gets published on a publicly accessible web server."
As for the libel portion of the lawsuit, Traffic-Power.com would have to show it had a good reputation within the industry that was damaged, and that Wall published damaging information he knew to be false.
"The fact that Traffic-Power is the same company that got banned from Google pretty much establishes the fact that they do not have a good reputation to protect," Boser said. And how could Traffic-Power.com prove that Wall made up a bunch of lies with the intent to damage its reputation "when there are literally hundreds of independent posts/websites on the internet that have published the exact same thing?"
For his part, Wall believes he and Traffic Power Sucks, whose webmaster declined to comment for this column because of the impending litigation, have been targeted because they seem small and easy to beat up.
"You don't see Traffic-Power suing Google," Wall said, even though a Google Answers thread singles out Traffic-Power.com for "questionable SEO tactics." If anything, that response on a website hosted by Google, from a freelance question answerer paid through Google, would be far more damaging to Traffic-Power.com's reputation than anything that could have appeared on Wall's blog.
"This case might be worth spending a bunch on to send a message to the people who aimed to send me a message," Wall said.
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Adam L. Penenberg is an assistant professor at New York University and the assistant director of the business and economic reporting program in the school's department of journalism.
