Are lawyers allowed to influence Google search results through paid advertising? Lawyers also like to actively advertise their services and use the available digital channels for this purpose. As is well known, the professional law of the legal profession sets certain limits to this need. But what exactly is the situation with lawyer advertising via the Internet?
In 2013, the Federal Supreme Court issued a landmark ruling on the admissibility and limits of advertising by lawyers(BGE 139 II 173). Much has happened since then. In the world of the Internet, the time that has passed since then is half an eternity. It is therefore not surprising that the now strongly developed advertising possibilities on the Internet required a review and concretization of the principles: In 2021, the Cantonal Court of St. Gallen was allowed to deal with a corresponding case.
In this article, we trace the history and appreciate the ruling in terms of its significance for lawyer advertising on the Internet.
A Google search for the terms "lawyers" or "law firm" quickly shows: There is no lack of visible lawyers or law firms. Especially in larger cities or towns, the search results show the high density of lawyers and law firms. However, users will not take the time to browse through several pages of search results. As a rule, they select one of the first results, click and land on the website. It is therefore understandable that the legal profession would also like to exhaust the available means for visibility here.
If we take a closer look, we can see that numerous lawyers are already paying search engines for better rankings. The tag "Ad" next to the entry indicates the paid ads.
There are two main reasons why "Google Ads" and "Keyword Advertising" have become sought-after advertising measures:
On the one hand, the use of financial resources in these areas helps to be listed ahead of the competition. For example, by purchasing keywords in certain areas of expertise, it is possible to gain clicks from potential clients who are looking for advice in this area and use these keywords. This is a common process.
On the other hand, Google ranking is also important for companies that do not "acquire clients through their website". Even if acquisition is perceived to take place by other means, these firms also depend on being found on the Internet.
It's well known: Before a client contacts you, she has numerous virtual touchpoints with your online presence.
Even if you are recommended: A potential client will always "google" you several times first, look at your LinkedIn profile or read online publications by you. She has to find this content!
It is undisputed that lawyers and law firms may also use this form of advertising. Nevertheless, the general limits of professional law according to Art. 12 lit. d of the Federal Act on the Free Movement of Lawyers (BGFA) apply.
According to Art. 12 lit. d BGFA, lawyers are allowed to advertise. However, this must remain objective and be adapted to the public's need for information.
Advertising for lawyers is protected by economic freedom under Art. 27 of the Swiss Constitution, and restrictions must be justified. However, there is a public interest in the regulation of advertising to ensure the proper and high-quality practice of law. The constant jurisprudence of the Federal Supreme Court therefore states that advertising by lawyers must be restrained. In particular, intrusive and misleading advertisements are prohibited.
Advertising is therefore permitted within the clearly formulated limits. However, it is questionable how far one may go in the use of digital advertising media and when the limits set by professional ethics law are exceeded in this area.
In February 2020, a lawyer filed a complaint against a colleague. The accusation was that the lawyer was engaging in unlawful advertising by influencing the search results on Google "by means of aggressive advertising". The average user is thereby deliberately given a false impression, as they trust that Google will always display the best result at the top.
The plaintiff analyzed the development in the Google search results over a longer period of time. In doing so, she noticed that not only when searching for general keywords such as "attorney" but also when searching for a specific St. Gallen attorney, an advertisement for the law firm of the indicated attorney appeared at the top of the results.
The advertiser therefore feared that the lawyer had integrated the names of competing law firms or lawyers as keywords in his advertisements on Google.
It is not surprising that the lawyer's actions in question were qualified as advertising within the meaning of Art. 12 lit. d BGFA (E. 4a).
The advertising media typical for the Internet are used to draw the attention of as many users as possible to the primary advertising medium (the website). The Cantonal Court did not find any lurid presentation or deceptive or misleading content on the website of the indicated lawyer (E 4b).
Today, it is generally accepted that the content of a law firm's website goes well beyond the need for information as stated by the Federal Court.
The point of contention in this case was thus in particular the lawyer's use of the available options for optimizing the results in the search engines.
In order to examine the admissibility of search engine optimization, the Cantonal Court dealt with two options of SEO:
Metatags are terms that are included in the HTLM code of the web page. They are not visible to the visitors of the website. However, they are part of the content and are therefore also read by search engines.
Metatags influence the content analysis that search engines perform on a website. By cleverly using certain terms as metatags, users with certain interests can be directed to one's own website.
Law firms usually use terms from the areas of law in which they are active. In this way, they increase the relevance of the content of their website in this specialist area and thus also the chance of landing further up the list of potential clients in the search results.
A Google algorithm determines exactly where the results appear in a search in the search engine. This evaluates the web pages according to a variety of content-related, technical and structural criteria.
Search results can also be optimized on Google by buying keywords. Keywords are key words and phrases in the content of a web page. They are terms that we assume our target groups will regularly type into the Google search box.
In concrete terms, it works like this: In order to indicate to Google in which context the purchased ads should appear, it is specified for which keywords this ad should appear. Paid keyword advertising can therefore influence the search queries for which a website appears on Google. Thus, paid ads generate more visitors:in on the law firm website and place the website ahead of the competition with similar content (but without paid Google advertising).
In the opinion of the cantonal court, the use of metatags to optimize search engine results is a permissible means of advertising under Art. 12 lit. d BGFA (E. 4bb). The same applies to keyword advertising, which is also considered permissible in principle (E. 4cc).
Thus, anyone searching for a specific law firm or for advice in general must inevitably expect that other law firms will also be displayed in that search.
In the specific case, it was the case that the advertisement of lawyer B. always appeared at the top of search queries without exception. In the opinion of the court, however, this could also be due to the fact that the lawyer in question was the only lawyer in the region to use the option of keyword advertising over a longer period of time and was thus able to benefit from a pioneering position.
Every law firm has the possibility to create a Google ad for marketing purposes. The use of keyword advertising is therefore not qualified by the Cantonal Court as lurid or intrusive advertising.
The Bar Association of the Canton of St. Gallen had already stated that it was an entrepreneurial decision of a law firm which advertising media were used for Internet advertising. The fact that professional colleges are disturbed by the marketing strategies of competitors does not justify any limitations under supervisory law (E. 4dd).
In addition, the court assumes that these ads would not be perceived as intrusive by the average user of a search engine on the Internet.
The suspicion expressed by the advertiser that the lawyer had bought the names of competitors as keywords could not be substantiated. The court assumes that the placement of the lawyer's ad even in search queries with names of other competitors has to do with the indexing by Google (E. 4ee).
In this case, the Cantonal Court explicitly left open the question of whether the use of competitors' law firm names is permissible or not.
Nevertheless, the court added that in view of the literature on competition law, even in these cases a likelihood of confusion could only arise in special circumstances (E. 4ee).
Of course, it is annoying when a Google search for one's own name first brings up the advertisement of another law firm. After all, the battle for new clients is largely decided on the Internet today.
Of course, it is also true from our point of view that both the use of metatags and keyword advertising are basically permissible means of advertising for law firms.
However, the fact that the Cantonal Court implies that even if other people's names are used in keyword advertising, there is no likelihood of confusion is quite remarkable.
The decision has clarified some questions. Until now, many Swiss lawyers and law firms have been rather reluctant to operate with such Google advertising measures.
There is likely to be some increase in advertising in the Swiss legal market. This will please someone in particular: Google!
For all advertisers, the higher competition in keyword advertising means rising prices. Google Ads will probably become more expensive in the future.
Thinking a little further ahead, lawyer advertising on the Internet is unlikely to be limited to Google in the future. The advertising possibilities on social media or other online platforms are wide-ranging. In line with current case law, these means of advertising would also have to be permissible within the same limits.
Every company can optimize its own online presence and thus defend itself against such practices.
For marketing teams, the verdict means: paid advertising is a marketing tool that should absolutely be examined and integrated in the future. It is worthwhile to consider an appropriate budget.
Here, too, simply paying is of little use.
There is always a need for broader structural optimization in addition to paid methods.
This work is worthwhile for paid advertising too. Google also checks keyword advertising: Do the purchased keywords match the content of the advertised website? Buying foreign keywords is therefore only a moderately useful strategy...
Note: Prof. Dr. iur. Walter Fellmann has also dealt with this judgment in a commentary in Anwaltsrevue (2022, p. 89 ff.).
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