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If you have ever downloaded Norton antivirus software, and then run the “free diagnostic” the download provides, you may have been disturbed to see that a report came back with several errors, including some designated “high priority.” Perhaps Symantec offered to fix some of these errors for free; others might only be fixed by purchasing additional protection. Maybe you were convinced such additional services were worth purchasing once you saw that there were problems already affecting your computer.
This week, James Gross (as lead plaintiff in a class action) claims that this practice “uniformly defrauds consumers” by persuading them to purchase products they might not need. The claim calls the products “scareware” because they intentionally warn of errors in “alarmist” or “extremely ominous” fashion without actually checking the computer’s condition; moreover, the suit claims that the offered products do not actually protect against the reported errors as promised.
The complaint, filed in California federal court, alleges that Symantec’s behavior with regard to this software amounts to, among other things, deceptive business practices and fraud.
California’s Business and Professions Code prohibits a company from engaging in any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. If the plaintiff and class can prove that the software did not actually scan the computer for the errors it claims to have “found,” or that such errors were not actually present on the computer, and can additionally show that these errors caused them to purchase the recommended upgrades, the court is likely to find that such practices are unfair competition (either because they represent unfair or fraudulent activity or because they constitute misleading advertising).
Symantec has firmly denied the claims as without merit. Whether or not the claims prove true, the presence and increase of allegations of scareware is troubling, particularly when such allegations point to companies on whom consumers depend for their protection.
For a further discussion of the potential dangers and invasiveness of antivirus software, and a novel suggestion regarding how courts can deal with these problems, look for Professor Joshua Fairfield’s article, “‘Do-Not-Track’ As Contract,” to be published in Issue 3 of the Vanderbilt Journal of Entertainment and Technology Law’s Volume 14.
– Andrea Verney
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