The lawsuit, filed Nov. 25 in the Superior Court of Washington State, is one of the first to bring public discontent over some type of Internet advertising to the courtroom. It charges San Luis Obispo, Calif.-based Bonzi Software with hoodwinking millions of Internet users into clicking to its Web site via the ads.
Bonzi's "ad banners are disguised as something other than ad banners, and unwitting users see what they believe to be an alert issued by their computer and then respond," said Darrell Scott, chair of the class-action practice group of Lukins & Annis, which brought the lawsuit. Scott estimated that Bonzi has been serving such ads to Web surfers for the last five years.
Bonzi Software did not return phone calls or e-mails seeking comment.
Since the commercialization of the Web, particularly following the dot-com bust, publishers and marketers have stretched the limits of standard banner advertising in order to get more people to respond to Web ads and prove that new media works for marketers.
But while Web surfers have grown tolerant of some types of ads, they've balked at others, including the widely used pop-up format. Popular Web services including AOL, MSN and EarthLink have tailored use of pop-ups as a result. The Bonzi suit, however, marks one of the first times surfers have taken their discontent into court.
Web publishers have already been there. This summer, seven online publishers filed a lawsuit against software company Gator for creating a service that lets companies place their ads on top of banners officially sanctioned by a site's operator. The publishers, which include the New York Times, have received a preliminaryagainst Gator. A final judgment in the case is still pending in federal court in Alexandria, Va. Gator's ads, which are triggered through software people download to their PC, are the subject of a slew of other complaints, too, including one from shipping company .
At the center of the Bonzi lawsuit are ads that pop up or appear on Web sites and carry messages that include the words "Security Alert," "Message Alert" or "Warning." One such banner reads: "Your computer is currently broadcasting an Internet IP Address. With this address someone can immediately begin attacking your computer." If surfers click on the X to close the banner, they're delivered to Bonzi's Web site.
With the ads, Bonzi is promoting its Web site and software, InternetBoost, which is designed to speed up Internet connections, and InternetAlert, built to safeguard computers from technology attacks. According to Web researcher Nielsen NetRatings, Bonzi is the No. 1 software advertiser on the Internet, delivering an estimated 743.5 million ad impressions to visitors in the month of October. Bonzi buys advertising space on sites including Yahoo, MSN and Classmates.com.
The ads have helped propel Bonzi's site into the top ranks of Web sites. In October, the company's site drew about 2 million unique visitors, according to NetRatings, and the site ranks 21 among general-interest portals and communities on the Web.
The class action, which is being handled by businessman Philip Carstens and his attorneys at Lukins & Annis, seeks to represent everyone in the United States who has received a banner like those from Bonzi. The suit charges the company with violating laws that safeguard against public nuisance and deceptive business practices.
The suit seeks to enjoin Bonzi from sending such ads in the future. It also asks for punitive relief, including $500 to every person who was received a deceptive ad from the company, and for the company to pay $5 for every banner it has delivered with the warning messages.
"The effect is to make online advertising a more effective reliable tool and not a disgraced one," said Lukins & Annis' Scott.