in Marketing

“Search Congress” Should Look to Legal Profession for Search Engine Marketing Code Of Ethics

I’m a licensed attorney (not practicing) and the founder of two search marketing agencies. So, with SEMPO’s call for a Search Marketing Code of Ethics, I figured I’d offer a few words of advice for the framers:

Look to the American Bar Association’s Model Rules of Rules of Professional Concuct.

While not all of the rules will have applicability to search marketers, I suggest that many will. Here are just a quick handful adapted from the ABA Rules:

Client-Marketer Relationship

Rule 1.1
A search marketer shall provide competent services to a client. Competent services requires the knowledge, skill and thoroughness and preparation reasonably necessary for the services.

Rule 1.2
(a) Subject to paragraph (b), a search marketer shall abide by a client’s decisions concerning the objectives of services and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A search marketer may take such action on the behalf of the client as is implicitly authorized to carry out the services.

(b) A search marketer shall not assist client in engaging in conduct that the search marketer knows is criminal or fraudulent, but a search marketer may discuss the consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, effectiveness or risks of the proposed course of conduct.

Rule 1.3
A search marketer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4
(a) A search marketer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required.

(2) reasonably consult with the client about the means by which the client’s objective are to be accomplished;

(3) keep the client reasonably informed about the status of the services;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on on the search marketer’s conduct when the search marketer knows that the client expects assistance not permitted by the Search Marketing Code of Ethics.

(b) A search marketer shall explain a course of action to the extent reasonably necessary to permit the client to make informed decisions regarding their services.

I suspect that many search marketers won’t like this approach. It doesn’t speak to many of the “search ethics” issues that have been regularly debated since time out of mind (aka the ’90s). For example, this approach may not speak to violations of search engine guidelines, which is contrary to other SEO Codes of Ethics.

But assuming a “Search Congress” is able to hammer-out a workable framework that many search marketers could agree upon, does the industry really want to subject itself to such a code?

After all, in order for this to actually “work” it has to have teeth. Which means that the “Search Congress” would need a governing body able to respond and adjudicate grievances and violations.

I welcome the idea of making the search marketing industry self-governing. There is little question that it would benefit clients. It will be very interesting to see what the “Search Congress” comes up with and even more interesting to see how the industry responds.

  • Kristine S

    So while I am sure there is good intention in this and I know you took time to write it, this would detrimental as a “code of ethics” and illustrates just why we cannot have one, especially if you as a lawyer who does this work cannot provide ones that would be viable.

    Why is it not viable? Below.

    Proposed
    Rule 1.1

    A search marketer shall provide competent services to a client.
    Competent services requires the knowledge, skill and thoroughness and
    preparation reasonably necessary for the services.

    Real World
    How would you define competent? Who would define competent? Would that be how the site positions? The traffic the site gets? The person simply doing what their contract requires? As you are aware, there would need to be a legal definition of competent, what would that be?

    Competency unlike in the medical, legal and real estate industries would be completely subjective, not objective, there is nothing to evaluate it against and in the end could not pass as part of any code.

    Proposed
    Rule 1.2

    (a) Subject to paragraph (b), a search marketer shall abide by a
    client’s decisions concerning the objectives of services and, as
    required by Rule 1.4, shall consult with the client as to the means by
    which they are to be pursued. A search marketer may take such action on
    the behalf of the client as is implicitly authorized to carry out the
    services.

    Real World
    So if I read this correctly “a search marketer shall abide by a
    client’s decisions concerning the objectives of services”, I cannot do any work they do not agree with even if I know that work cannot 1) hurt them 2) will help them? Then I have to get explicit permission for the work that has to be done?

    What if your client tells you to do things that will hurt them because that is how they understand that algorithm? What if they don’t let you do what you need to because again that is how they understand the algorithm?

    Now do we tell our clients what we are doing? Sure, do we ask permission to do everything? No. If it cannot hurt them and we have outlined our strategy (ie explained the process and the direction) we do not involve them in day to day decision making. Isn’t that what they pay us to do, our jobs? Do you report everything you do in a day when you work inside a company? No. You do your job with goals and objectives in mind. Why would it be more restrictive for a consultant?

    This proposes a parent-child client relationship with ambiguous standards. So this could not stand.

    Proposed
    (b) A search marketer shall not assist client in engaging in conduct
    that the search marketer knows is criminal or fraudulent, but a search
    marketer may discuss the consequences of any proposed course of conduct
    with a client and may counsel or assist a client to make a good faith
    effort to determine the validity, scope, effectiveness or risks of the
    proposed course of conduct.

    Real World
    What would you determine to be fraudulent? Would that be when a marketer lies and does not do the work stated/ or does work that can hurt the client? Is that when the client wants to do something considered fraudulent? And if that is the case under which law; as fraud infers against legal statutes.

    If that statement is about not assisting the client in doing something fraudulent, then you will have to decide on what law will cover the interaction, as that requires a legal definition. Same for criminal. Online gaming is illegal everywhere in the US, but Las Vegas. If you have a Las Vegas client are you governed under their laws or yours? While this seems black and white, it is as grey as everything else.

    I will not argue criminal aspects, but that and fraud are already
    covered by laws that currently exist and so do not require a code of
    ethics. The rest would require a governing body of law and how would that every be agreed on?

    Proposed
    Rule 1.3

    A search marketer shall act with reasonable diligence and promptness in representing a client.

    Real World
    And how would you measure this? There is nothing in this industry that can be set like in a contract with a Realtor or a legal case like a Lawyer. No court dates, no mandatory contract laws, so how would this be defined?

    So again this is subjective AND is governed by processes outside the control of the marketer such as Google updates or client work.

    Can you imagine if people had signed this between Penguin 2 and 3? Would clients understand you really CANNOT help recover their site until the algorithm goes through 12 months later?

    And what is promptness in representing? We have clients with all different time frames in fact we often help a client with a lesser budget, by lengthening their time frames and a blackhatter can do it twice as fast, so just what would be “reasonable diligence and promptness”.

    And again this is outlined in contracts between clients and providers as a matter of law (contracts require time frames), so this like criminal and fraudulent is covered by existing practices and would change on a case by case basis and depending on what the governing law defines.

    Proposed
    Rule 1.4
    (a) A search marketer shall:

    Real World
    Everything here is already governed under contracts or just good business. If a client needs these assurances, they will be in the contract. We already provide most of these as a matter of fact.

    That is everything except

    (5) consult with the client about any relevant limitation on on the
    search marketer’s conduct when the search marketer knows that the client
    expects assistance not permitted by the Search Marketing Code of
    Ethics.

    So this is telling us we need to tell the client when something does not meet this agreement? Except for criminal what would that be? And if criminal, it is already covered by the law and does not need to be put forth in a code of ethics.

    So all I see here are either completely subjective standards that would require a governing legal code and change on a case-by-case/provider-by-provider basis OR items are already covered by legal contracts or criminal statutes therefore a COE is not needed.

    And in the end what would anyone gain from it? Other than grounds to be sued? It would not prevent an “asshat” SEOs from doing what they already do, but it would hold us legally to a subjective code that relies on the client understanding just exactly how all this works and legal definitions that may differ from our own jurisdictions.

    I am not trying to be harsh. I just think it is important to understand how something would or would not work in the practical and this would not.

    • @kristineschachinger:disqus thanks for your thoughtful response. You identify the great difficulties in establishing a uniform code of professional ethics. Nonetheless, I disagree with your ultimate conclusion that these rules would be detrimental and that, due to the difficulty and subjectivity involved, we simply cannot have one.

      First, there is subjectivity in the practices of law and medicine. Professionals are relied upon to exercise judgment, and the respective rules are flexible to accommodate subjectivity. It seems that you think these rules must codify specific outcomes (i.e. traffic drop = lack of competency). This is simply not the case.

      The rules don’t focus on outlining specific behaviors and outcomes. Sure, most of us would probably agree on a rule like don’t lie and mislead and put your client’s interests first. These don’t speak to specific instances of conduct. Resolution of specific instances/disputes must be handled by a process.

      Second, enforcement of the rules is separate from having rules in the first place. Are you arguing that a search marketer should not be expected to provide competent services? I don’t think that you are.

      You do recognize the challenges of defining competence. Again, looking to the legal and medical professions, there is a process for adjudicating grievances/disputes. Such a process would have to exist in the marketing arena as well.

      Perhaps the most difficult obstacle (and the one that would likely prevent any rules from being adopted) is the need of a governing organization.

      Members of this organization would likely need to be elected.

      There is no doubt that the process and machinery required to enforce a uniform set of rules is complicated and would require extensive work.

      But the rules themselves are not without merit.

      Thanks again for stopping by and sharing your thoughts.