Issues with the “bait and switch” search engine optimization technique and the Fair Trade Act

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In internet marketing, search engine optimization (SEO) is often used to improve search engine exposure and increase web page or website traffic. Frequently used SEO techniques include content optimization and keyword optimization, as well as increasing page load speed. SEO differs from keyword advertising. Although keyword advertising also aims to increase visitation traffic, it is essentially a service offered by the search engines themselves. In contrast, in the case of SEO, search engines are often a tool: SEO experts analyze their algorithms, especially those relating to natural search rankings, thereby making marketed content more accessible to search engine users.

Under Article 25 of Taiwan’s Fair Trade Law (“FTA”), “No company shall… engage in deceptive or manifestly unfair behavior that is likely to affect the commercial order”. The Fair Trade Commission (“FTC”), the agency charged with protecting fair trade, has ruled in several decisions that a buyer of keyword advertising would violate Section 25 if the keyword being exploited is the competitor’s trade name. of the buyer, because the ads that appear on keyword searches “benefit for free from the commercial efforts of the competitor, thus altering the order of transactions in the market whose cornerstone is competition on price, quality and other efficiencies. (eg, FTC Decision No. 109056 and FTC Decision No. 110075).

When SEO marketing meets FTA, more complex legal issues arise, as SEO includes a variety of techniques with varying degrees of legal risk. But it can be said with certainty that an SEO technique called bait and switch poses a higher risk of breaching Article 25. By using this technique, the actor generates clicks from consumers to his own website, thereby increasing website traffic, even if consumers search for unrelated content. In a ruling this month, a local shopping platform and its affiliate using this technique were fined NT$2,000,000 and NT$800,000, respectively, by the FTC for committing a violation. of Section 25 (FTC Decision Nos. 111019 and 111020). .

According to the decision and alert issued by the FTC, once the shopping platform’s system noticed that a visitor was searching for a brand whose products were not listed on the platform, it generated a page on the platform. marketing copy incorporating the brand into its content. When third-party search engines like Google crawl content on the platform, they link to this copy page. Then, when search engine users would search for that brand name, the platform would appear in the search results and consumers would be prompted to click on it. As a result, platform visits and traffic would increase, even if branded products were not offered on the platform.

This conduct was found to violate Article 25 of the FTA. The FTC found that by using this SEO bait-and-switch technique, the platform was misleading consumers into visiting its website, and increasing traffic was only part of the story. stratagem. Through this technique, visitors directed to the platform would compare and then be able to purchase similar products from other brands offered on the platform. As a result, the commercial exposure of the brand originally sought would decrease. As the FTC’s alert states, “this amounts to tricking consumers into ‘buying from the wrong bazaar’.”

The FTC pointed out that even though the platform was not directly exploiting a third-party brand through keyword advertising, its behavior still caused unfair competition to companies selling products from those third-party brands, because normal consumer search and purchase processes for these brands the goods have been disrupted and misappropriated.

The platform has announced that it will appeal the FTC’s decision, all the way to court if necessary, so it’s worth monitoring further developments.

In the digital age where search engines have become a necessity, search results exert an undeniable influence on our purchasing behavior. It is therefore not surprising that companies use search engine functions to improve their marketing. Nevertheless, it is advisable to be aware of the red lines set by laws and practices and, as laws and practices are constantly changing, consult a company with extensive experience to protect your interests.

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