Free Speech Ruling Could Spell the End for “Free” Search Results
In 2011, eight New York-based activists filed a lawsuit against Chinese search engine Baidu, claiming that by blocking their pro-democratic content from it’s results pages, Baidu had violated their rights to free speech.
Today, however, a U.S. district judge ruled that Baidu has done no such thing.
Baidu, the largest search engine in China with over 61 percent of the market share, is a private company, but it must still comply with its country’s stringent censorship laws. The activist’s content therefore was banned from Baidu’s results pages in China. However Baidu also blocked access to those pages for users in the United States—thus the lawsuit.
While it might seem ironic that a U.S. judge used the First Amendment to further Chinese censorship, this is not a case of whether or not search engines have a legal obligation to protect the free speech of others. It is a case of whether or not search engines themselves have the right to free speech.
According to the judge, search engines have the ability to edit the content in their results pages the same way that newspapers have editorial control over what they publish.
Most online marketers would laugh at the idea that search engines don’t have editorial control. Anyone who has ever dealt with Google—or worse, a Google penalty—knows that Google keeps a big-brother style eye on those top results pages, and heaven forbid you fall into their bad graces. Yet at the same time, never before has the topic been brought up in a legal context.
What Does That Mean For Marketers?
Google has always had complete control over what appears in it’s rankings, and has controlled that content under the guise of it’s ToS and algorithmic updates.
Now, however, search engines have been declared private parties who—for better or worse—have been given full power of the dreaded editorial red pen. It’s a legal precedent that puts more power in the hands of search engines, which could mean trouble down the road.
Do we think that Google will begin to cherry-pick all the content that it chooses to display in it’s results pages? No. Will Google use this content to drive marketers towards it’s own advertising platforms? It’s very likely.
As Google continues to sculpt it’s algorithm and refine what it considers “organic”, Google could easily (ab)use this ruling to widen the scope of what it chooses to penalize or mark as “bad SEO.” They’ve already started tightening the net around guest posting and other link-building strategies; when Panda and Penguin were released, so many sites were struck from the top rankings because of their risky backlink profiles and numerous paid links. In the meantime, Google was right there advertising Adwords as the solution to lost organic rankings.
Stricter updates and algorithm changes could increase the number of penalties being doled out, but by giving Google and other search engines protection under the First Amendment, they’ve insured there’s nothing we can do about it.
Whether it’s driving advertisers towards Adwords or some more radical change it remains to be seen, but if nothing else, it will ensure that the nature of SEO will continue on it’s path of rapid transformation.
In the meantime, lawyers of the activists say they plan to appeal the ruling.
What do you think of this new development? Do you think it will have a major impact on online marketing? Share your thoughts in the comments!
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