BILL NUMBER: AB 2950 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 2008
AMENDED IN ASSEMBLY APRIL 3, 2008
INTRODUCED BY Assembly Member Huffman
FEBRUARY 22, 2008
An act to amend Section 17529.5 of the Business and
Professions Code, relating to An act relating to
advertising.
LEGISLATIVE COUNSEL'S DIGEST
AB 2950, as amended, Huffman. Computers: false or
deceptive commercial Commercial e-mail messages
: falsity and deception .
Existing state law prohibits a person or entity from advertising
in a commercial e-mail advertisement that is sent either from
California or to a California e-mail address if the e-mail contains
or is accompanied by a 3rd party's domain name without permission,
contains or is accompanied by falsified, misrepresented, or forged
header information, or has a misleading subject line, and makes a
violation of the prohibition a misdemeanor. Existing law authorizes
the Attorney General, an e-mail service provider, or the recipient of
an unsolicited commercial e-mail advertisement transmitted in
violation of these provisions to bring an action to recover
liquidated damages of $1,000 per unsolicited commercial e-mail
advertisement transmitted in violation of the provisions, up to
$1,000,000 per incident, subject to reduction by the court, as
specified.
This bill would declare the intent of the Legislature to regulate
false and deceptive commercial electronic mail messages, as
specified.
This bill would instead make it unlawful and a misdemeanor for any
person or entity to send, initiate, or advertise in, or knowingly
enable another to send, initiate, or advertise in, a commercial
e-mail message that contains falsity or deception in any portion of
the message or information attached thereto and that is either sent
from California or to a California e-mail address. The bill would
also authorize a district attorney or city attorney to bring an
action for a violation of these provisions, and would authorize a
court to increase or reduce damages, as specified, and to award
injunctive relief.
Because a violation of the provisions of this bill would be a
crime, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to
regulate false and deceptive commercial electronic mail messages
within the exception to federal preemption to the full extent
permitted by the CAN-SPAM Act of 2003 (17 U.S.C. Sec. 7707(b)) and
any other provision of state and federal law.
SECTION 1. Section 17529.5 of the Business and
Professions Code is amended to read:
17529.5. (a) It is the intent of the Legislature that this
section, which prohibits falsity and deception in commercial e-mail
messages and attachments, shall operate within the exception to
federal preemption to the full extent permitted by the CAN-SPAM Act
of 2003 (17 U.S.C. Sec. 7707(b)) and any other provision of federal
law.
(b) It is unlawful for any person or entity to send, initiate, or
advertise in, or knowingly enable or assist another to send, initiate
or advertise in, a commercial e-mail message that contains falsity
or deception in any portion of the message or information attached
thereto and that is either sent from California or sent to a
California electronic mail address. For the purposes of this section,
falsity or deception in any portion of a commercial e-mail message
or any information attached thereto includes, but is not limited to,
any of the following:
(1) The commercial e-mail message contains or is accompanied by a
third-party's domain name without the permission of the third party.
Accurate source or destination information shall not constitute a
violation of this paragraph.
(2) The e-mail advertisement contains or is accompanied by header
information that is materially false or misleading, as defined in
Section 7704 of Title 15 of the United States Code. This paragraph
does not apply to truthful information used by a third party who has
been lawfully authorized by the advertiser to use that information.
(3) The e-mail advertisement has a subject line that a person
knows would be likely to mislead a recipient, acting reasonably under
the circumstances, about a material fact regarding the contents or
subject matter of the message.
(c) (1) (A) In addition to any other remedies provided by any
other provision of law, the following may bring an action against a
person or entity that violates any provision of this section:
(i) The Attorney General, a district attorney, or the city
attorney.
(ii) An electronic mail service provider.
(iii) A recipient of an unsolicited commercial e-mail
advertisement, as defined in Section 17529.1.
(B) A person or entity bringing an action pursuant to subparagraph
(A) may recover or be awarded any or all of the following:
(i) Actual damages.
(ii) Liquidated damages of one thousand dollars ($1,000) for each
commercial e-mail message transmitted in violation of this section,
up to one million dollars ($1,000,000) per incident.
(iii) If the court finds that the defendant willfully or knowingly
violated this section, the court may, in its discretion, increase
the amount of the award to an amount equal to not more than three
times the amount otherwise awarded pursuant to clauses (i) and (ii)
combined.
(iv) An order enjoining violations of this section.
(C) The recipient, an electronic mail service provider, the
Attorney General, a district attorney, or a city attorney, if the
prevailing plaintiff, may also recover reasonable attorney's fees and
costs.
(D) However, there shall not be a cause of action under this
section against an electronic mail service provider that is only
involved in the routine transmission of the commercial e-mail message
over its computer network. For purposes of this section, "routine
transmission" does not include actions taken as an advertising
network.
(2) If the court finds that the defendant established and
implemented, with due care, practices and procedures reasonably
designed to effectively prevent commercial e-mail messages that are
in violation of this section, the court shall reduce the liquidated
damages recoverable under paragraph (1) to a maximum of one hundred
dollars ($100) for each unsolicited commercial e-mail advertisement,
or a maximum of one hundred thousand dollars ($100,000) per incident.
(3) (A) A person who has brought an action against a party under
this section shall not bring an action against that party under
Section 17529.8 or 17538.45 for the same commercial e-mail message or
incident.
(B) A person who has brought an action against a party under
Section 17529.8 or 17538.45 shall not bring an action against that
party under this section for the same commercial e-mail message or
incident.
(d) A violation of this section is a misdemeanor, punishable by a
fine of not more than one thousand dollars ($1,000), imprisonment in
a county jail for not more than six months, or both that fine and
imprisonment.
(e) The provisions of this section are severable. If any provision
of this section or its application is held invalid, the invalidity
shall not affect any other provision or application that can be given
effect without the invalid provision or application.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.