Unfortunately the ECJ’s stayed very vague in its decisions (e.g. Google France) when dealing with the aspect of the liability exemption of providers for rights violations committed by their customers (Art 14 eCommerce Directive).
The ECJ found that the provider of a referencing service, such as AdWords, couldn’t be barred from the liability exemption if the service itself was ‘mere technical, automatic and passive nature‘. [par 113 of the Google France decision] The fact that AdWords is earning money through its service (‘subject to payment‘) and that is provides its customers ‘general information‘, in the view of the court, can not have the effect of depriving AdWords from that exemption. [par 116] Thus the core issue now left to be decided by the national courts is whether or not, AdWords remains ‘neutral‘ during the course of drafting the text or ‘in the establishment or selection of keywords‘. [par 118]
As none of the national courts has yet rendered a decision on the issue, this post provides information about the much argued Keyword Tool and analysed if this service fulfils the requirements of Art 14. What makes the tool so delicate is that, upon request of the user, the tool suggests (or provides ‘ideas‘ for), additional keywords. Among these suggested keywords there were/are usually also keywords which might infringe intellectual rights of third parties.
Google itself differentiates between two different Keyword Tools: the Search-based Keyword Tool and the Keyword Tool in AdWords (which can only be used by AdWords customer). The difference between both is that the Search Based Keyword Tool focuses on a website provided by the user and basically suggests to the advertiser which keywords to book to successfully advertise the website site. (The Search Based Keyword Tool is explained in a nice little video clip by Google below)
The Second one, the Keyword Tool in AdWords, has already been around for some time and recently got updated. According to the relevant Google AdWords Support Pages, the Search Based Keyword Tool however provides ‘more detailed data for each keyword, such as category information, suggested bid that may place the ad in the top three spots of a search results page, and ad/search share.’ Furthermore the results shown by both services are said to vary slightly due to different methods of calculation.
What might be interesting to note is that there used to be a public version of the AdWords tool, which apparently got replaced by a public version of the Search Based tool. I gave both tools a quick try but couldn’t spot any mayor differences in the way they function or the information they provide.
Thus I went on to compare the new and the old layout of AdWord’s Keyword Tool:
The old layout of the AdWords Keyword Tool:
The new layout of the AdWord’s Keyword Tool:
Changes & developments:
* Having used mainly the old layout I was surprised to see that in the new layout, the function of suggesting keywords for a given keyword gets kind of pushed into the background, while suggesting keywords that match the content of a given website is today offered more prominently.
*Not being able spot the word “suggest” anywhere on the screen-shots of the old or the new layout I wonder where this term has actually come from. In the new layout the keywords offered/suggested are however clearly labelled as ‘Ideas‘. This might be far more than just a play of words as I think there is a big difference between providing ‘suggestions‘ (to eventually infringe third party intellectual property rights) or merely to provides ‘ideas‘. Although there have always been numerous disclaimers around, pointing out the fact that the advertiser ‘is responsible for the keywords that [he/she] select[s] and for ensuring that [their] use of the keywords does not violate any applicable laws’, the term ‘idea’ puts, more emphasis on the free discretion of the advertiser. While the disclaimer used to be shown in the old layout very prominently at the top of the page, it is shown at the very bottom of the page in the new layout.
* The new version of the Keyword Tool also incorporates different categories for goods & services. These categories, however seem not to be identical with e.g. the Nice Classification. Still I wonder if these categories only purpose is to assist advertiser or if they also could help trademark owner to protect certain terms for certain groups of goods & services. When asking for ‘ideas’ for the keywords ‘Scotsman, hotel, Edinburgh’ the tool correctly suggested these terms belong to following categories: Travel & Tourism / Accommodations / Hotels, Motels & Resorts / …
* AdWords still can’t tell/predict advertisers, using the standard keyword option ‘broad match‘, ex ante which keyword will trigger their ads, but supplies their customers with a ‘Search Query Report‘ which tells them ex post which keywords have triggered their ads. While advertisers in the past were forced to use extra software (e.g. Google Analytics) to track user behaviours this feature now seems already to be incorporated into AdWords. What makes this feature quite interesting is that, to my knowledge, the use of such software is not -politely expressed- in full accordance with national data protection laws, thus I wonder if courts will be able to force advertisers to check these lists as they would thereby order advertisers to ‘spy‘ on their customers. (Quick reminder, as a reader of this blog, you are also being ‘spied upon’ by Statcounter.com.)
Obviously Google is trying to push its service from being as an (‘evil‘) tool generally hidden inside of AdWords, allegedly aiming to redirect user attention from trademark owners to the content of third party advertisers, towards being an openly accessible (‘friendly‘) Search Based Keyword Tool that doesn’t do anything else than just provide advertiser with some (pretty detailed) ‘general information‘ about what users are searcher for.
Coming back to the question of if the assistance offered by this tool, in my opinion should be seen as ‘neutral in the establishment or selection of keywords‘ I think the answer is ‘Yes‘. This conclusion is based on two assumptions:
1: Even a IT-savvy judge/lawyer/jurist can in the best case only be seen as a ‘the one-eyed among the blind‘ as, except for the case that they also hold a degree in computer science, they are usually forced to base their assumption on simplifications. The web however offers a plethora of information to anybody who actually knows how to retrieve & interpret it. What Google does however is not much more than to just make easily publicly available (using nicely coloured and intuitive layouts) information which used to be reserved solely for some IT-geeks (with a strong mathematical background) working for the marketing department of big companies.
2: Google does not restrict the information supplied through its Keyword Tool to the use by Advertisers. Mostly unnoticed Google has just recently rolled out functions like “Something Different” or “Google Brand Links” which do pretty much the same as the Keyword Tool, ‘suggesting‘ information to users which they might find useful and which was generated through analysing what other users searched for on Google and how the interacted with the search result.
For example the search for “lawyer” on google.us, lead to a SERP suggesting on the lower left side also to try out the search terms ‘barrister, accountant, paralegal, …‘. Shall something that is perfect okay for users at the same time be banned for advertisers?
One feature the author personally finds very interesting and which might eventually prove problematic for AdWords is the recently introduced ‘IP address exclusion‘ function which bars certain IP-addresses from seeing certain ads. However, we are left to see if this function will be (ab)used by the ‘ever-so-cheeky-advertisers‘ to prevent e.g. a trademark owner from seeing that his TM got infringed by the advertisers ad. I actually do think so