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Microsoft asks 11th Circuit to affirm win over false advertising suit

Cybersecurity competitor TocMail claims ads for Microsoft’s email security software contained false statements about the effectiveness of its protections.

ATLANTA (CN) — An attorney for Microsoft asked an 11th Circuit panel on Thursday to uphold a Florida federal judge’s ruling in favor of the software giant in a false advertising action brought by a cybersecurity competitor.

Arguing on behalf of Microsoft Corporation, attorney Elliot Scherker of Greenberg Traurig urged the three-judge panel to preserve the lower court’s decision in a case filed by TocMail Inc. over allegedly false statements made by Microsoft in the advertising and promotion of its Safe Links software. The technology is a cybersecurity link scanning feature within Microsoft’s cloud-based email filtering service.

“Microsoft’s ads are not literally false,” Scherker said. “We have no evidence of deception at all by anything Microsoft said or did.”

The software, now known as Microsoft Defender for Office 365, protects users from malicious website URLs by analyzing the linked content and blocking the link if the site is bad. It directly competes with TocMail’s namesake product, which also offers protection against links that redirect to harmful content after delivery.

Hackers often use evasion techniques to disguise malicious content, making it appear benign to get around cybersecurity software. IP evasion is one technique where phishing URLs use a visitor’s IP address to decide whether that visitor is a human or a security software and then display benign content to the security scanner and malicious content to the intended victim.

In its February 2020 lawsuit, TocMail claimed that Safe Links offered zero protection against IP evasion attacks for several years while Microsoft’s ads for the software deceived consumers into thinking the product provided effective protection.

Promotional materials advertising Safe Links made statements claiming that the software “proactively protects” users and “ensures users are protected against URLs that redirect to malicious sites.”

U.S. District Judge Aileen Cannon ruled that the ads were ambiguous and therefore could not be literally false.

“Each of the ads at issue reasonably could be interpreted in multiple ways,” Cannon wrote. The judge also noted that the ads “undercut the impression that Microsoft is promoting 100% protection” by including language stating that the software “mitigates” malicious content and “helps prevent” users from going to malicious sites.

Microsoft has said that Safe Links is not 100% effective.

TocMail challenged the decision, arguing in appellate legal briefings that there was “ample” evidence to support the literal falsity of the ads due to the promise of “effective protection.”

“The ads state [Microsoft] is able to protect users. That’s the gist of why the ads are unambiguous,” attorney Joshua Martin of Johnson & Martin argued on behalf of TocMail during Thursday’s hearing. “They promote at least some protection, the level doesn’t matter. We have substantial evidence that Safe Links provides zero protection against these various attacks.”

Scherker said the panel should reject Martin’s argument outright, saying, “That’s just wrong… This entire ‘zero protection’ argument is simply baseless on the record and proceeds from a completely flawed premise.”

The attorney went on to argue that it is not Microsoft’s burden to show the ads are literally true. “All we have to prevail on is whether [the ads are] ambiguous in context,” Scherker said.

The ads in this instance were directed at IT professionals who, he argued, are probably familiar with cybersecurity issues.

“It’s an enterprise product. It’s sold to larger corporations… It’s not advertised in USA Today for sale to individual consumers,” Scherker said. “This was in a slide presentation and pitch deck for corporations, all of whom know that the threat dynamic changes virtually every day.”

U.S. Circuit Judge Robert Luck, a Donald Trump appointee, pushed back on that claim, pointing out that one of the allegedly offending ads says Safe Links “ensures hyperlinks in documents are harmless.”

“This [statement] seems emphatic to me,” Luck said.

Scherker told the panel that “reasonable” IT professionals know “there’s no such thing as 100% protection” or a guarantee that malware and phishing can be completely irradicated.  

Martin argued in rebuttal that since the ads “promote some protection,” there is evidence that some customers were deceived.

“A disclaimer that we don’t protect against all threats… isn’t disavowing or taking away from the fact that they’re promoting protection every time against a specific attack,” Martin said.

Luck was joined on the panel by fellow Trump appointee U.S. Circuit Judge Kevin Newsom and Senior U.S. Circuit Judge Gerald Tjoflat, an appointee of Gerald Ford. The panel did not indicate when they would rule in the case.

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