‘No Such Thing’ as 100% Protection Against Cyberthreats: Microsoft

The lawyer for appellant TocMail in its false-advertising appeal against Microsoft struggled in oral argument Thursday before the 11th Circuit U.S. Court of Appeals to explain how his client has standing to reverse a lower court’s finding of summary judgment in defendant Microsoft’s favor when TocMail can’t establish injury from Microsoft’s alleged deception in a two-competitor market. U.S. District Judge Aileen Cannon for Southern Florida in December 2021 ruling said Microsoft’s ads for its Safe Links enterprise email security software were ambiguous and couldn't be literally false when they claimed absolute protection against “IP evasion” cyberthreats.

The case law “that deals with injury” to a competitor in a two-player market in which one company runs deceptive ads shows “it’s important for the plaintiff to show that there’s a likelihood of injury,” said TocMail attorney Joshua Martin of Johnson & Martin Thursday. “The issue becomes, is there a likelihood that the appellant would have lost at least one customer due to the false advertising by the defendant.”

TocMail’s “lack of sales is actually consistent with the injury” it incurred because it’s “being shut out of the market” through Microsoft’s deceptive ads, said Martin. He conceded under aggressive questioning that TocMail spent only $4,500 on marketing between its launch in December 2019 and its lawsuit against Microsoft five months later, and he was unable to say how that marketing inactivity created an avenue for TocMail to gain customers, let alone lose them.

Microsoft’s Safe Links ads “are not literally false,” countered Elliot Scherker of Greenberg Traurig. “We dispute that this is a two-player market,” he said. “We believe that’s self-aggrandizement on behalf of TocMail. There are a number of players in this field.”

Microsoft’s ads are targeted toward “IT professionals,” said Scherker. Safe Links is “an enterprise product,” he said. “It’s sold to large corporations. It’s not advertised in USA Today.” The “model” IT professional “knows there’s no such thing as 100% protection,” he said. “There’s no such thing as a guarantee that you’ll be able to stop malware.”

The district court ruled the ads aren't literally false, said Scherker. “It’s not our burden to show that the ads are literally true, though I think we’ve satisfied that burden,” he said. “Microsoft tells the world that there is no such thing as 100% protection.”