NEWS

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12-03-2018

 

Conviction for breach of the obligation of referencing of a website

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In a judgment of the Paris Commercial Court of February 14, 2018, the judges condemned a website referencing provider for not having " deployed all the efforts necessary to respect its obligation of means_cc781905 -5cde-3194-bb3b-136bad5cf58d_” website referencing.

 

 

The referencing of a website depends on many parameters over which the service provider has no influence, such as the appreciation of the search engines used, the constant evolution and opacity of the algorithms used by the search engines, the number of existing competitors on the same searched keywords, optimization actions and advertising campaigns carried out by competitors, etc.

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Given this random nature, it is consistently judged that, in the absence of a specific contractual provision, the obligation to refer to a website is only aobligation of means and not an obligation of result. 

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So that the service provider does not fail in its obligation of referencing if it does not manage to make appear the Internet site of its customer in the first two pages of results of the search engines.

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However, the referencing of a website on search engines is not the result of chance and results from the implementation of a certain number of actions and technical operations (such as optimization beacons, the implementation of statistical and analysis tools, the reinforcement of the internal networking of the site, etc.), which also evolve according to the evolutions and expectations of the search engines.

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The service provider will therefore incur liability if it is found that it has not taken all the appropriate, useful and possible measures, that it has notnot implemented all the means at its disposal to tend towards the expected result, namely, the best possible positioning of the website on the search engines.

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In this case, the Paris Commercial Court noted that one month after the signing of the referencing contract, the service provider had carried out the " positioning on the Google site of two keywords on the 21 planned, no referencing on the sites of Bing and Yahoo ”.

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Almost a year after the conclusion of the SEO contract, in December 2015, it was found that the situation had not improved. -5cde-3194-bb3b-136bad5cf58d_the SEO on the Yahoo site was gone, no change on the Bing site, slight improvement on the Google site ”.

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The Commercial Court of Paris deduced from these elements that the client was providing proof that the service provider had not deployed " all the efforts necessary to comply with its obligation of means_cc781905-5cde-3194- bb3b-136bad5cf58d_" and, noted that the service provider did not demonstrate that he had "  performed within the framework of this obligation, all the services provided for in the contract_cc781905-5cde-3194-bb3b- 136bad5cf58d_”.

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This decision is therefore in line with the case law in the matter, which does not focus on the absence of a result obtained, but assesses in concreto whether the service provider has indeed carried out all possible and useful actions to achieve the expected result, such as, for example, in this case, whether the keywords defined by the client have indeed been taken into account by the service provider.

 

Carole Couson-Warlop, lawyer, ARTLEX, Nantes

Ludmilla Berraho, lawyer, ARTLEX, Nantes

 

# Paris Commercial Court, intellectual property law, digital law, referencing, website, web, referencing obligation, obligation of means, news, legal monitoring, case law