Lawsuit targets ‘deceptive’ banner ads

An Internet company that allegedly duped millions of computer users into visiting its Web site by causing fake error messages to pop up on their screens has been slapped with a class action lawsuit seeking millions of dollars in damages.

The complaint accuses Internet portal Bonzi.com of tricking users into visiting its Web site by creating pop-up banner advertisements disguised as security alerts or other computer system warnings. When users click on the advertisements they are unwittingly directed to Bonzi’s Web site where the company hopes to sell them software and other products, the suit charges.

“The success of defendant’s deceptive pirating of innocent users computers is demonstrated in Bonzi.com’s being vaulted to the level of third most frequently ‘visited’ website in the world,” according to the suit, filed Nov. 25 in the Washington State Superior Court of Spokane County.

The suit seeks class action status on behalf of all users in the U.S. who encountered the deceptive ads. It asks the court to ban the site’s operator from the practice and award $500 to each affected user, as well as $5 for each deceptive banner advertisement issued. It says the company issued more than 300 million of the advertisements.

Named in the suit are Bonzi Software, of San Luis Obispo, Calif., which operates the site, and its chief executives. They are accused of profiteering through fraud and intentional misrepresentation, deceptive business practices, acting as a public nuisance and trespass to chattel (or property, in this case the user’s PC).

Although Bonzi did not respond to calls seeking comment Thursday, the firm has defended its advertising strategy in the past. “All we are trying to do is grab your attention the same way the employee outside Wal-Mart does by telling you what’s on sale as you walk in,” Bonzi spokesman John Epstein said at the time.

One legal expert said Thursday that the case may face an uphill battle. It’s not clear that consumers suffered any real harm from Bonzi’s actions, only the inconvenience of being taken to a Web site they didn’t intend to visit, said Evan Cox, a San Francisco partner with the law firm Covington & Burling who covers Internet law.

“The approach is interesting, and there may be a lot of people out there rooting for the plaintiff on an emotional level, but the complaint probably faces an uphill battle on most of its courses of action,” he said.

The judge may conclude that the matter could be better handled by the U.S. Federal Trade Commission or state attorneys general under their consumer protection powers, he added.

The banner advertisements used the familiar blue and gray interface of Windows system alerts and bore messages such as: “Security Alert: Your computer is currently broadcasting an Internet IP address. With this address, someone can immediately begin attacking your computer!”

When users click the “x” or the “OK” button to close the box they are directed to the Bonzi.com portal, which offers a shopping mall, movie reviews and other content.

Lukins & Annis P.S., the Spokane, Washington, law firm that filed the suit, said it could have targeted numerous Internet companies with the suit but chose Bonzi because it is one of the most prolific offenders, according to Darrell Scott, an attorney with the law firm.

“The Internet is ripe for some civil litigation that helps nudge it in an area that makes it a more prestigious and reliable way of doing business,” he said.

Since word of the suit surfaced on the Web earlier this week, Lukins & Annis has been inundated with more than 700,000 e-mail messages from users in the U.S. and Canada and as far away as Australia asking how they can join the suit or initiate similar proceedings against Bonzi and other offenders, according to Scott.

The Spokane County judge will be charged with determining whether the lawsuit merits class action status and should be allowed to proceed. Scott said he’ll begin filing motions with the court in about 60 days and hopes the case will come to trial within a year.

At court, the company plans to cite “16th century English common law on interference with the public highway – in this case the public Internet highway,” he said, noting that U.S. law is derived in large part from English common law.

“The Internet has unfortunately become a cornucopia for deceptive business practices,” Scott said in a statement earlier this week. “Class-based civil litigation will hopefully establish that the Internet is not, as some think, a sanctuary for those who engage in deception.”

Users who want to be part of the suit or find more information can visit https://www.lukins.com/bonzi

Tom Spring of PC World, an IDG News Service affiliate, contributed to this report.