March 17, 2008 11:05 AM PDT

Online advertiser to settle spam charges for record $2.9 million

Posted by Anne Broache

An online advertising company accused of luring customers with deceptive offers of "free" iPhones, laptop computers, plasma televisions, and other goods has agreed to pay a record $2.9 million fine as part of a settlement with the Federal Trade Commission.

According to a federal court filing (PDF) released Monday, since at least early 2005, Westlake Village, Calif.-based ValueClick and its subsidiary Hi-Speed Media have been attempting to lure consumers to their Web sites through e-mails and Web-based ads bearing slogans like "Free PS3 for survey" or "let us buy you a 42 inch plasma tv! Just type in your zip code." The purpose of those operations was "lead generation"--that is, connecting consumers with advertisers trying to sell certain goods or services, the FTC complaint said.

Trouble is, the companies didn't disclose "clearly and conspicuously" that, in reality, the offers weren't exactly free, the FTC charged. Instead, consumers were required to fulfill certain obligations or incur various other expenses--for instance, applying for car loans or credit cards--in order to qualify for those goods. In addition to allegedly running afoul of a broader law prohibiting unfair and deceptive practices, the FTC said that misleading subject lines in those e-mails violated the 2003 Can-Spam Act, which regulates distribution of bulk e-mail.

The alleged violations didn't stop there: The companies also gathered sensitive credit card and financial information but did not encrypt that data in a way that's consistent with industry standards or take other steps to protect it from hackers--even though they claimed to do otherwise, the FTC said.

The charges resulted in the largest settlement amount the FTC has reached under Can-Spam, the agency said in a statement. Until Monday's announcement, the FTC's highest settlement under Can-Spam occurred in March 2006, when a company called Jumpstart, which allegedly sent misleading e-mails offering free movie tickets, agreed to pay $900,000 in civil penalties.

It was also the FTC's third case targeting "deceptive promises of free merchandise" by Internet lead generation enterprises. In a case last November, a company called Adteractive, which allegedly lured customers to its Web sites with promises of "free gifts," agreed to pay $650,000 in civil penalties as part of an FTC settlement.

In addition to the monetary payout, ValueClick is required to make clear disclosures about what its customers must do in exchange for the free products. It also must establish and maintain a "comprehensive security program" for protecting personal information, subject to mandatory "independent third-party" reviews, for 20 years.

ValueClick apparently knew the settlement was coming more than a month ago. At that time, it released a statement saying it expected the $2.9 million charge, although, as is the norm in these arrangements, it did not concede it had violated any laws. The company also said the FTC complaint referred only to "past practices" of its Hi-Speed Media subsidiary and not other portions of its company.

Before becoming official, the settlement is subject to approval from a federal district judge in California.