• by Wendy Davis  @wendyndavis, June 12, 2020

A recent decision in a battle between two security vendors will hinder efforts to combat malware and other threats, online security company ESET is telling the Supreme Court.

The decision will “make it harder for ESET and other legitimate cyber security companies to provide their users with the means to avoid objectionable materials online,” the company writes. “The internet will become a more dangerous and confusing place for consumers."

ESET makes the claim in a friend-of-the-court brief urging the Supreme Court to review a decision that allowed Enigma Software to proceed with claims that its programs were wrongly deemed potential threats by rival Malwarebytes.

That lower-court decision, issued last year by the 9th Circuit Court of Appeals, “impedes the development of effective cyber security software,” ESET writes.

The 9th Circuit ruling allows Enigma to proceed with a lawsuit alleging that Malwarebytes acted anti-competitively and engaged in false advertising by flagging Enigma's SpyHunter and RegHunter as potentially unwanted programs.

The court fight dates to 2016, when Enigma alleged that Malwarebytes' actions amounted to a “bad faith campaign of unfair competition.”

Malwarebytes countered that Enigma “uses deceptive scare tactics” to “trick” consumers into purchasing subscriptions.

Malwarebytes also argued it was immunized from suit by Section 230 of the Communications Decency Act. That law has a provision protecting computer services that offer tools to restrict objectionable material.

A trial judge dismissed the lawsuit, but a panel of the 9th Circuit voted 2-1 to reinstate Enigma's complaint. The appellate panel ruled Malwarebytes wasn't entitled to immunity because it competes with Enigma.

Malwarebytes recently asked the Supreme Court to take up the case. The company says the 9th Circuit's decision is inconsistent with the language of Section 230.

ESET says it agrees with Malwarebytes -- a competitor -- that the decision incorrectly interprets Section 230.

“This case involves a question of such exceptional importance that ESET decided to file an amicus brief in support of one of its direct competitors,” the company writes.

“Congress granted broad immunity to companies that provide users the means to filter out objectionable online content, but the Ninth Circuit’s decision undercuts that statutory immunity whenever a plaintiff alleges anticompetitive animus,” ESET adds. “Yet a purveyor of objectionable material can easily position itself as a competitor and make a facially plausible claim of such animus.”

The digital rights group Electronic Frontier Foundation is also supporting Malwarebytes' request for review by the Supreme Court. 

Enigma Software is expected to file a response with the Supreme Court by late July.