Last week, Google got caught with its hand in the cookie jar, allegedly engaged in a range of questionable activities with regard to a Kenyan company called Mocality. According to Mocality, Google employees were “scraping data” collected by Mocality for its business listings, and then using that data to target advertise GKBO’s services to Kenyan businesses. To make matters worse, Mocality has telephone recordings of Google representatives describing a non-existent relationship between Mocality and the GKBO project. Google VP, Nelson Mattos, commented on the incident on Google+, saying that he was mortified to discover that a team working for Google had inappropriately used Mocality’s data and misrepresented their relationship with Mocality.
It is not really clear whether this admission of guilt is based on information about the incident from Google’s own investigation, or whether Mattos was simply responding to the initial claim by Mocality. Some people feel that an apology is not enough, while others feel that the claim by Mocality is too strong and that Google’s part in this is actually very limited. I’d like to take some time to analyse the evidence collected by Mocality to determine just how badly Google might have acted in this instance.
Mocality is deeply upset about the fact that Google has been “scraping the data” provided in their listings. To be fair, they have put a lot of work into creating their business listings, and spent a fortune (over US$100 000) in a crowd-sourcing campaign that rewarded users who provided Mocality with accurate company details. Mocality lists all of these details publicly on its website. It is essentially providing a service much like the Yellow Pages for Kenya and Nigeria. Some people have suggested that since all of this information has been made publicly available on the internet, anybody should be able to use it in whatever way they choose. That just isn’t the case. If you post something on the Internet and you explicitly set out usage terms and conditions that are reasonable, then users are legally bound to adhere to those usage terms.
Terms and Conditions
At the bottom of Mocality’s site is a link to its Terms and Conditions, which explicitly set out the Terms under which you are entitled to use data hosted on the website. The section of this page that is very specific about how data can be used is Section 9, Restrictions On Use. Some pretty specific information is provided here including:
“9.16. use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index the Site or any Site Content;”
Although the term “scraping” has been used widely in all of the media reporting on the incident, it is clear from Stefan Magdalinski’s original post on the matter that there is “no evidence of automated scraping, this appears to be a team of humans”. This suggests that at least in relation to this legal usage requirement, the alleged team of Google employees were acting appropriately.
The more damning terms appear earlier in the list of terms:
“9.3. use the Site or Service to post spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not; 9.4. use the Site or Service for promotional or commercial purposes, except as expressly permitted by Mocality in these Terms of Service; 9.5. use the Site or Service in a manner that may create a conflict of interest; ”
It seems clear that Mocality set out to protect businesses listed on its site from being marketed to en masse, and Google has expressly contravened this regulation. The fact that GKBO, is to some extent, a competing service, it is clear that use of the site to market GKBO’s services to businesses listed with Mocality may create a conflict of interest.
Do Terms and Conditions listed on a website hold any water? I chatted to a legal friend of mine about this, and he was pretty adamant that they do, and in some countries are even a legal requirement nowadays. Obviously, the terms set out for your website have to be reasonable, and any dispute over the contract that is implied through a page listing terms and conditions will ultimately need to be settled in court. However, in this case, it seems that Mocality has set out terms that are fairly explicit about protecting its own IP and its customers. I think that Mocality has a strong legal claim simply based on this contravention of its terms and conditions.
The most upsetting side to this story was the fact that Google employees were actually misrepresenting Google’s and GKBO’s relationship with Mocality in order to gain the appearance of legitimacy during their phone calls. This is simply fraudulent and smacks of social engineering. The recorded phone conversations and associated transcripts are absolutely damning. Certainly, it is clear that Mocality can claim damages on the grounds that it has hard and fast evidence of Google employees not only misrepresenting their relationship, but being actively slanderous about services provided by Mocality.
Many commentators on the internet have questioned why Google would even need to pretend that it had any relationship with Mocality in the first place. After all, Google has much greater representation and brand power than Mocality. As a result, some commentators are suggesting that this would not be a Google directive and in such a case, Google cannot be held responsible. This is just ridiculous. The actions of any company’s employees while engaged in business on a company’s behalf are the company’s responsibility. It is very clear as to what services were being sold in these phone calls, and Google’s relationship in this project is fairly well documented. Mocality is actually a pretty big name in the Kenyan online space. While Google may be a big name globally, Mocality has captured a wide segment of the Kenyan business market and it is obviously a segment that Google is interested in. Whether or not the decision to engage in these practices came from head office or not, there can be no doubt that Google has crossed a line here.
So, is an apology enough? Well, there are a few things that we haven’t really looked at. To begin with, Mocality uses a lot of Google code in order to provide its location-based services, its AJAX functionality and a whole bunch of other stuff on its site. So, in some strange way, Mocality already has some sort of contractual relationship with Google. In fact, Magdalinski’s original blog post is fairly explicit about how dependent Mocality’s business strategy is on Google: “Google is a key part of our business strategy. Mocality will succeed if our member businesses are discoverable by people via Google. We actually track how well our businesses place on Google as a key metric, and have always regarded it as a symbiotic relationship”. Mocality’s attack on Google almost seems to come across as a case of ‘biting the hand that feeds it’.
A second issue is that of the originator of the calls. According to an update on Magdalinski’s blog, Google has contacted him with an apology and he is now under the impression that the calls were made by a third-party vendor who was calling on behalf of Google. Yes, even here, Google must take some responsibility, but it seems fairly obvious that this wasn’t something driven by anybody at head office, or even further down the chain. More than likely, some bright spark in the trenches decided that this was a good marketing strategy and ran with it without consulting management.
It is clear that something went wrong here. For one thing, Mocality is well within its rights to be angry with Google. Slander and misrepresentation may have long-term effects on Mocality’s eventual success in Kenya. Certainly, customers who are listed with Mocality cannot be happy that the service has resulted in them being effectively spammed. The fact that Mocality has been fielding calls from upset customers is also a problem. Sure, Mocality uses Google code and takes advantage of a variety of Google services, but I assume that they do this within the parameters set out by Google’s own terms and conditions. The least that Google could afford to Mocality is some mutuality of respect. I believe that even though Mocality is not pursuing legal action against Google, it has a very strong case against Google, and somehow, a simple apology does not seem to be enough.