• by Wendy Davis  @wendyndavis, October 22, 2008

A California resident has sued AOL for inserting "annoying, confusing, intrusive and misleading" ads in his e-mail.

In a complaint filed in federal district court in Los Angeles, AOL subscriber Frank Cecchini alleges that his e-mails should not contain ads because he pays the Internet company $25.90 a month for his account.

"AOL paying e-mail subscribers expect the ability to send out e-mails without advertisements inserted," he alleges. Cecchini, who is seeking class-action status, adds that AOL "willfully deceived" consumers by not informing them about the ads, which appear as text in the e-mail.

An AOL spokesperson said the company could not comment on the specifics of Cecchini's lawsuit.

But, the spokesperson added, all paying AOL subscribers can opt out of sending ads in the footers of their e-mails.

In 2006, AOL began offering e-mail accounts to users for free as part of an effort to remake itself as an ad-supported Web portal. But the company continued to sell subscriptions for dial-up access and other services, including e-mail. Today, AOL still has around 8.1 million subscribers who pay between $4.95 and $25.90 monthly, depending on their level of service.

The company also began placing footer ads into e-mail messages two years ago. Cecchini's lawyer, Christopher Hamner, says that AOL should have asked members for consent before inserting the ads. "Nothing in the terms of service alerts the paid subscribers that AOL is going to do this," he said.

Cecchini, an AOL user since 1998, is alleging fraud, unjust enrichment and violations of California's business code. He's seeking more than $5 million in damages for himself and other AOL subscribers.

But the lawsuit could face an uphill battle in court. Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said that as long as AOL did not create an expectation that its e-mail service would be ad-free, it's hard to see how it could be held liable for fraud.