Misleading Advertising and Technology Law: The Symantec Case

Symantec, the company that distributes Norton Utilities, is the subject of a lawsuit filed recently by James Gross, a resident of Washington. Gross alleges in the lawsuit that Norton Utilities, along with two other products offered by Symantec, PC Tools Registry Mechanic and PC Tools Performance Toolkit, are actually “scareware,” designed to frighten consumers into purchasing the products. Gross has requested class action status for the lawsuit.

Trial Version Always Reports Errors: Misleading Advertising or Software Glitch

According to the lawsuit documents, Symantec designed the software to report problems, even if they do not exist, in an effort to scare consumers into purchasing the paid software immediately. Gross claims that he ran one of the free trial scans, which indicated that his computer had “high priority errors” and that his system health was “low.” The program indicated that Gross must purchase the full version in order to eliminate the problems. A computer forensic review of the software stated that the software “always” reported low system health after running the trial version.

Gross further alleges in the lawsuit that the trial version actually contains no diagnostic abilities, despite the claims to consumers in the company advertising. Instead, it’s being alleged that Symantec engineers designed the program to find errors that do not exist and report those errors back to the consumer in an ominous way, causing the computer user to feel they must immediately download the paid software. The lawsuit alleges that this is evidence of fraud. The suit also states that the trial versions are of no benefit to customers because not only do they not perform diagnostic tests, but also cannot remove any of the problems allegedly “found.” Some industry insiders feel that the problem may not be with Symantec’s marketing but more of an engineering problem. If Gross can prove that they designed software that would intentionally mislead customers, he could have a shot.

History of Advertising Scare Tactics?

This is not the first time that customers have accused Symantec of using “scare tactics” to sell products. In 2010, customers complained that when their anti-virus subscriptions expired, they received a message warning them that a virus may have already infected their system. Reports stated that the message included wording such as: “Any second now a virus might infect your computer, malicious malware might be installed or your identity may be stolen.” The warning continued, saying that “maybe cybercriminals are about to clean out your bank account. The choice is yours: Protect yourself now or beg for mercy.” Customers claimed that the warning was similar to extortion and Symantec eventually removed the warning, issuing a statement that it “was meant to be a joke.”

Although some experts believe that it will be difficult for Gross to prove that Symantec intentionally defrauded customers, especially the claim that the software has no benefit, computer software companies are watching the lawsuit closely. The outcome may affect the way that software companies market their products in the future. In addition, the lawsuit does more than just accuse Symantec of scare tactics, but accuses them of actual fraud. Despite the fact that it may be difficult for Gross to prove fraud, the “scareware” label may remain.

Do you have a product that’s marketed online? Want to make sure you’re staying on the right side of technology law when it comes to misleading advertising statutes? If yes, contact the Kelly Law Firm today to sort through your website and marketing collateral. You’ve spent a considerable amount of time building your business, don’t let yourself get into trouble for crossing the “misleading advertising” line.

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