Suppose you are planning to have a picnic but realize you need a table cloth to take to the park. You log on to Google and search for "red tablecloth." While you know there will be clearly marked advertisements for websites selling red tablecloths, what are your expectations for the "organic" search results? Are the top organic results the most responsive websites to your query, do these sites just have the best consultants to ensure their companies' sites are on top? Are "organic" search results not so "organic" after all? Google has long encouraged search engine optimization (SEO), but differentiates between legitimate techniques for a site to increase its visibility and deceptive techniques, often referred to as "black hat." If a website is improperly boosting their results, Google will punish these sites by pushing them lower down on the search results list, or removing them from appearing in Google search results altogether. Google acts as judge, jury and executioner. JCPenney recently learned this hard way, though the company's mistake may have just been getting caught, not by Google, but by a major media outlet. During the holiday season, the top "organic" search result for "bedding," "dresses," "area rugs," and a whole host of consumer goods was JCPenney. While JCPenney certainly sold all of the products, there was no reason to suggest they should consistently be the top result over, for instance, other retailers like Bed Bath & Beyond, Crate & Barrel, Amazon, and Wal-Mart, or informational websites like Wikipedia. The New York Times exposed this curious search pattern and revealed that JCPenney had been engaging in deceptive techniques to boost their search ranking. JCPenney allegedly bolstered their Google rank by paying sites, some otherwise abandoned and others completely unrelated to anything sold by JCPenney, to have certain phrases link to its website. These phrases often appeared in the footer of the websites. For example, the phrase "black dresses" with a JCPenney link appeared on a site called nuclear.engineeringaddict.com, likewise with "long evening dresses" on g2gadget.com. As a result, Google dropped JCPenney down in its search results 50-60 places for numerous terms. During the holiday season, JCPenney had been one of Google's biggest paid advertisers for sponsored links. While critics may allege paid advertisers get preferential treatment in organic search as well, Google vehemently denies any relation between the two as the search group and the advertising group seemingly have a Chinese wall between them. An interesting question arises when thinking about what legal responsibility Google plays in the search result process. However, there are, at this point, more questions than answers. Consumer expectations play a role, but is it reasonable for a consumer to think that the website that Google ranked as number one is the most relevant of all the billions of websites on the internet, or would a rough approximation do? Consumers rely in part on Google when creating their expectations. While Google does not explicitly state that its search engine always provides the best result, it does clearly demarcate paid search hits. This separation of paid results from "organic" results may imply that the "organic" results are unpaid and are objective in some manner. It is also unclear how consumers are harmed and, further, what any cure could be. While consumers do not directly pay anything to perform a Google search, they may be harmed by wasting time on irrelevant sites or buying unnecessary products. For example, some Google searches may identify sites as offering a product, but when the consumer clicks on the site, the product is not actually available. Is this an internet version of the "bait and switch?" In other cases, consumers may end up paying too much. Any cure to this situation that would require greater disclosure by Google of their search algorithm would only give websites more information on how to game the system, although consumers may then at least be aware of such scamming. Finally, Google may be protected by the First Amendment. The First Amendment protects television networks who are just disseminators of advertisements, and thus not liable for false or misleading ads. While Google is a disseminator of websites, it does more than just passively play advertisements, it ranks their relevancy and, in some ways, marks its imprimatur on them. Case law thus far has focused on the deceptive advertisements themselves, most often the paid advertisements on Google's search. The FTC recently brought a case against an individual for placing deceptive ads on keyword searches for federal programs which were designed to look like government agencies. The court ruled that the ads were deceptive because they made consumers believe they were government-sponsored links when they were actually private businesses. – Randy Shaheen and McCormick Conforti
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