Regulation, Google-Style: A few quick thoughts on Irwin Mitchell’s SEO problems

Various outlets have reported that Irwin Mitchell has been penalised by Google for its Search Engine Optimisation (SEO) tactics (see here and the apparent origin of the story here).  What caught my eye, apart from the fact that – a very long time ago – I worked for Irwin Mitchell, was the approach to regulation of SEO that Google employs. To quote from the Lawyer story (linked above):

“Google have been firm and consistent when it comes to taking action against sites that have broken their guidelines.”

Google is known to remove organic listing for companies that break its rules against unnaturally influencing search results. The internet search giant doesn’t publish how its algorithms work, or its precise rulebook for search results, but SEO experts said there are some generally accepted criteria that SEO optimisers should be aware of. Google did not respond to requests for comment but it is believed it would have written to Irwin Mitchell to explain the decision and may have included some information on why it acted as it did. SLF tech director Damian Blackburn said Irwin Mitchell is likely to have to adjust its SEO work by removing links, tags or content. “Once they have done that they would make a submission to Google to remove the de-listing. There are no published rules on how Google make this decision, but one assumes that if Irwin Mitchell reverses some of the issues Google have written to them about, they will re-appear fairly swiftly”, Blackburn added.

My interpretation of this is that there is a deliberate retention of discretion designed to ensure that those who game SEO can be pulled up and dealt with.  Put another way, and here I am speculating, they do not publish detailed guidance and rules because they expect ‘bad guys’ to game around them and ‘good guys’ not to need them.  It may be an example of what Yuval Feldman and Henry Smith call “acoustic separation“: the rules are designed to deal differently with people presumed to be acting in good faith and those who appear not to be. Of course, the merit of the system is contingent on the quality of judgement exercised (in this case) by Google and whether the uncertainty provoked by not publishing detailed guidance is detrimental to the good guys (and Google’s customers who want search rankings to be useful, and – importantly – to any revenue streams like advertising).

To return to the specific case, we do not know whether Irwin Mitchell are the good guys or the bad guys (though we can form our own judgements on examples of the kind of thing that may be causing Google – and now Irwin Mithcell – anxiety). Outcome Focused Regulation might be thought of as being similar.  The SRA resists the desire to publish detailed rules on issues and asks firms to apply principles (outcomes) to their own cases and businesses.  It builds on research evidence that the best way to encourage good behaviour in a subject is to provide only general guidance on good behaviour with the subject expecting some good faith, ex post review of their behaviour. The idea is that their judgements about the right thing to do are more genuine and considered as a result: they don’t just fall back on following the rules. The trouble for the SRA is that lawyers expect rules, and their judgement on the quality of SRA discretion may be unforgiving.  Also they are a public regulator: who need to act accountably and proportionately.  The courts may inhibit the extent to which the SRA can rely on applying ex post discretion in disciplinary matters.  Google is able to be less circumspect and, interestingly, may sometimes be able to regulate better as a result. Where it chooses to.  And if we trust them.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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