CALIFORNIA BUSINESS AND
PROFESSIONS CODE
DIVISION 7, PART 3, CHAPTER 1
ARTICLE 1.8. Restrictions On Unsolicited Commercial E-mail Advertisers
(added by S.B.
186 (2003), approved September 23, 2003)
§ 17529. The
Legislature hereby finds and declares all of the following:
(a) Roughly 40 percent of all e-mail traffic
in the United States is comprised of unsolicited commercial e-mail
advertisements (hereafter spam) and industry experts predict that by the end of
2003 half of all e-mail traffic will be comprised of spam.
(b) The increase in spam is not only an
annoyance but is also an increasing drain on corporate budgets and possibly a
threat to the continued usefulness of the most successful tool of the computer
age.
(c) Complaints from irate business and
home-computer users regarding spam have skyrocketed, and polls have reported that
74 percent of respondents favor making mass spamming illegal and only 12
percent are opposed, and that 80 percent of respondents consider spam very
annoying.
(d) According to Ferris Research Inc., a San
Francisco consulting group, spam will cost United States organizations more
than ten billion dollars ($10,000,000,000) this year, including lost
productivity and the additional equipment, software, and manpower needed to
combat the problem. California is 12 percent of the United States population with
an emphasis on technology business, and it is therefore estimated that spam
costs California organizations well over 1.2 billion dollars ($1,200,000,000).
(e) Like junk faxes, spam imposes a cost on
users, using up valuable storage space in e-mail inboxes, as well as costly
computer band width, and on networks and the computer servers that power them,
and discourages people from using e-mail.
(f) Spam filters have not proven effective.
(g) Like traditional paper "junk"
mail, spam can be annoying and waste time, but it also causes many additional
problems because it is easy and inexpensive to create, but difficult and costly
to eliminate.
(h) The "cost shifting" from
deceptive spammers to Internet business and e-mail users has been likened to
sending junk mail with postage due or making telemarketing calls to someone's
pay-per-minute cellular phone.
(i) Many spammers
have become so adept at masking their tracks that they are rarely found, and
are so technologically sophisticated that they can adjust their systems to
counter special filters and other barriers against spam and can even
electronically commandeer unprotected computers, turning them into
spam-launching weapons of mass production.
(j) There is a need to regulate the advertisers
who use spam, as well as the actual spammers, because the actual spammers can
be difficult to track down due to some return addresses that show up on the
display as "unknown" and many others being obvious fakes and they are
often located offshore.
(k) The true beneficiaries of spam are the
advertisers who benefit from the marketing derived from the advertisements.
(l) In addition, spam is responsible for
virus proliferation that can cause tremendous damage both to individual
computers and to business systems.
(m) Because of the above problems, it is
necessary that spam be prohibited and that commercial advertising e-mails be regulated as set forth in this article.
§ 17529.1. For
the purpose of this article, the following definitions apply:
(a) "Advertiser" means a person or
entity that advertises through the use of commercial e-mail advertisements.
(b) "California electronic mail
address" or "California e-mail address" means any of the
following:
(1) An e-mail address furnished by an
electronic mail service provider that sends bills for furnishing and
maintaining that e-mail address to a mailing address in this state.
(2) An e-mail address ordinarily accessed
from a computer located in this state.
(3) An e-mail address furnished to a resident
of this state.
(c) "Commercial e-mail
advertisement" means any electronic mail message initiated for the purpose
of advertising or promoting the lease, sale, rental, gift offer, or other
disposition of any property, goods, services, or extension of credit.
(d) "Direct consent" means that the
recipient has expressly consented to receive e-mail advertisements from the
advertiser, either in response to a clear and conspicuous request for the
consent or at the recipient's own initiative.
(e) "Domain name" means any
alphanumeric designation that is registered with or assigned by any domain name
registrar as part of an electronic address on the Internet.
(f) "Electronic mail" or
"e-mail" means an electronic message that is sent to an e-mail
address and transmitted between two or more telecommunications devices,
computers, or electronic devices capable of receiving electronic messages,
whether or not the message is converted to hard copy format after receipt or is
viewed upon transmission or stored for later retrieval. "Electronic
mail" or "e-mail" includes electronic messages that are
transmitted through a local, regional, or global computer network.
(g) "Electronic mail address" or
"e-mail address" means a destination, commonly expressed as a string
of characters, to which electronic mail can be sent or delivered. An
"electronic mail address" or "e-mail address" consists of a
user name or mailbox and a reference to an Internet domain.
(h) "Electronic mail service
provider" means any person, including an Internet service provider, that
is an intermediary in sending or receiving electronic mail or that provides to
end users of the electronic mail service the ability to send or receive
electronic mail.
(i)
"Initiate" means to transmit or cause to be transmitted a commercial
e-mail advertisement or assist in the transmission of a commercial e-mail
advertisement by providing electronic mail addresses where the advertisement
may be sent, but does not include the routine transmission of the advertisement
through the network or system of a telecommunications utility or an electronic
mail service provider through its network or system.
(j) "Incident" means a single
transmission or delivery to a single recipient or to multiple recipients of
unsolicited commercial e-mail advertisement containing substantially similar
content.
(k) "Internet" has the meaning set
forth in paragraph (6) of subdivision (e) of Section 17538.
(l) "Preexisting or current business
relationship," as used in connection with the sending of a commercial
e-mail advertisement, means that the recipient has made an inquiry and has
provided his or her e-mail address, or has made an application, purchase, or
transaction, with or without consideration, regarding products or services
offered by the advertiser.
Commercial e-mail advertisements sent
pursuant to the exemption provided for a preexisting or current business
relationship shall provide the recipient of the commercial e-mail advertisement
with the ability to "opt-out" from receiving further commercial
e-mail advertisements by calling a toll-free telephone number or by sending an
"unsubscribe" e-mail to the advertiser offering the products or
services in the commercial e-mail advertisement. This opt-out provision does
not apply to recipients who are receiving free e-mail service with regard to
commercial e-mail advertisements sent by the provider of the e-mail service.
(m) "Recipient" means the addressee
of an unsolicited commercial e-mail advertisement. If an addressee of an
unsolicited commercial e-mail advertisement has one or more e-mail addresses to
which an unsolicited commercial e-mail advertisement is sent, the addressee
shall be deemed to be a separate recipient for each e-mail address to which the
e-mail advertisement is sent.
(n) "Routine transmission" means
the transmission, routing, relaying, handling, or storing of an electronic mail
message through an automatic technical process. "Routine transmission"
shall not include the sending, or the knowing participation in the sending, of
unsolicited commercial e-mail advertisements.
(o) "Unsolicited commercial e-mail
advertisement" means a commercial e-mail advertisement sent to a recipient
who meets both of the following criteria:
(1) The recipient has not provided direct
consent to receive advertisements from the advertiser.
(2) The recipient does not have a preexisting
or current business relationship, as defined in subdivision (l), with the advertiser
promoting the lease, sale, rental, gift offer, or other disposition of any
property, goods, services, or extension of credit.
§ 17529.2.
Notwithstanding any other provision of law, a person or entity may not do any
of the following:
(a) Initiate or advertise in an unsolicited
commercial e-mail advertisement from California or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(b) Initiate or advertise in an unsolicited
commercial e-mail advertisement to a California electronic mail address, or
advertise in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
(c) The provisions of this section are
severable. If any provision of this section or its application is held invalid,
that invalidity shall not affect any other provision or application that can be
given effect without the invalid provision or application.
§ 17529.3.
Nothing in this article shall be construed to limit or restrict the adoption,
implementation, or enforcement by a provider of Internet access service of a
policy of declining to transmit, receive, route, relay, handle, or store
certain types of electronic mail messages.
§ 17529.4. (a)
It is unlawful for any person or entity to collect electronic mail addresses
posted on the Internet if the purpose of the collection is for the electronic
mail addresses to be used to do either of the following:
(1) Initiate or advertise in an unsolicited
commercial e-mail advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited
commercial e-mail advertisement to a California electronic mail address, or
advertise in an unsolicited commercial e-mail advertisement sent to California
electronic mail address.
(b) It is unlawful for any person or entity
to use an electronic mail address obtained by using automated means based on a
combination of names, letters, or numbers to do either of the following:
(1) Initiate or advertise in an unsolicited
commercial e-mail advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited
commercial e-mail advertisement to a California electronic mail address, or
advertise in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
(c) It is unlawful for any person to use
scripts or other automated means to register for multiple electronic mail
accounts from which to do, or to enable another person to do, either of the
following:
(1) Initiate or advertise in an unsolicited
commercial e-mail advertisement from California, or advertise in an unsolicited
commercial e-mail advertisement sent from California.
(2) Initiate or advertise in an unsolicited
commercial e-mail advertisement to a California electronic mail address, or
advertise in an unsolicited commercial e-mail advertisement sent to a
California electronic mail address.
§ 17529.5. It is
unlawful for any person or entity to advertise using a commercial e-mail
advertisement either sent from California or sent to a California electronic
mail address under any of the following circumstances:
(a) The commercial e-mail advertisement
contains or is accompanied by a third party's domain name without the
permission of the third party.
(b) The commercial e-mail advertisement
contains or is accompanied by falsified, misrepresented, obscured, or forged
header information. 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.
(c) The commercial 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.
§ 17529.8. (a)
(1) In addition to any other remedies provided by this article or by any other
provisions of law, a recipient of an unsolicited commercial e-mail
advertisement transmitted in violation of this article, an electronic mail
service provider, or the Attorney General may bring an action against an entity
that violates any provision of this article to recover either or both of the
following:
(A) Actual damages.
(B) Liquidated damages of one thousand
dollars ($1,000) for each unsolicited commercial e-mail advertisement
transmitted in violation of Section 17529.2, up to one million dollars
($1,000,000) per incident.
(2) The recipient, an electronic mail service
provider, or the Attorney General, if the prevailing plaintiff, may also
recover reasonable attorney's fees and costs.
(3) However, there shall not be a cause of
action against an electronic mail service provider that is only involved in the
routine transmission of the unsolicited commercial e-mail advertisement over
its computer network.
(b) If the court finds that the defendant
established and implemented, with due care, practices and procedures reasonably
designed to effectively prevent unsolicited commercial e-mail advertisements
that are in violation of this article, the court shall reduce the liquidated
damages recoverable under subdivision (a) 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.
§ 17529.9. The
provisions of this article are severable. If any provision of this article or
its application is held invalid, that invalidity shall not affect any other
provision or application that can be given effect without the invalid provision
or application.
CALIFORNIA BUSINESS AND
PROFESSIONS CODE
SECTION 17538.45
(as amended by S.B.
186 (2003), approved September 23, 2003)
§ 17538.45. (a)
For purposes of this section, the following words have the following meanings:
(1) "Electronic mail advertisement"
means any electronic mail message, the principal purpose of which is to
promote, directly or indirectly, the sale or other distribution of goods or
services to the recipient.
(2) "Unsolicited electronic mail advertisement"
means any electronic mail advertisement that meets both of the following
requirements:
(A) It is addressed to a recipient with whom
the initiator does not have an existing business or personal relationship.
(B) It is not sent at the request of or with
the express consent of the recipient.
(3) "Electronic mail service
provider" means any business or organization qualified to do business in
California that provides registered users the ability to send or receive
electronic mail through equipment located in this state and that is an
intermediary in sending or receiving electronic mail.
(4) "Initiation" of an unsolicited
electronic mail advertisement refers to the action by the initial sender of the
electronic mail advertisement. It does not refer to the actions of any
intervening electronic mail service provider that may handle or retransmit the
electronic message.
(5) "Registered user" means any
individual, corporation, or other entity that maintains an electronic mail
address with an electronic mail service provider.
(b) No registered user of an electronic mail
service provider shall use or cause to be used that electronic mail service
provider's equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its service or
equipment for the initiation of unsolicited electronic mail advertisements.
(c) No individual, corporation, or other
entity shall use or cause to be used, by initiating an unsolicited electronic
mail advertisement, an electronic mail service provider's equipment located in
this state in violation of that electronic mail service provider's policy
prohibiting or restricting the use of its equipment to deliver unsolicited
electronic mail advertisements to its registered users.
(d) An electronic mail service provider shall
not be required to create a policy prohibiting or restricting the use of its
equipment for the initiation or delivery of unsolicited electronic mail
advertisements.
(e) Nothing in this section shall be
construed to limit or restrict the rights of an electronic mail service
provider under Section 230(c)(1) of Title 47 of the
United States Code, or any decision of an electronic mail service provider to
permit or to restrict access to or use of its system, or any exercise of its
editorial function.
(f) (1) In addition to any other action
available under law, any electronic mail service provider whose policy on
unsolicited electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss suffered
by that provider by reason of that violation, or liquidated damages of fifty
dollars ($50) for each electronic mail message initiated or delivered in
violation of this section, up to a maximum of twenty-five thousand dollars
($25,000) per day, whichever amount is greater.
(2) In any action brought pursuant to
paragraph (1), the court may award reasonable attorney's fees to a prevailing
party.
(3) (A) In any action brought pursuant to
paragraph (1), the electronic mail service provider shall be required to
establish as an element of its cause of action that prior to the alleged
violation, the defendant had actual notice of both of the following:
(i) The electronic
mail service provider's policy on unsolicited electronic mail advertising.
(ii) The fact that the defendant's
unsolicited electronic mail advertisements would use or cause to be used the
electronic mail service provider's equipment located in this state.
(B) In this regard, the Legislature finds
that with rapid advances in Internet technology, and electronic mail technology
in particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on the computers
used to provide electronic mail services in a manner that displays the policy
statements every time an electronic mail delivery is requested. While the state
of the technology does not support such a finding at present, the Legislature
believes that, in a given case at some future date, a showing that notice was
supplied via electronic means between the sending and receiving computers could
be held to constitute actual notice to the sender for purposes of this
paragraph.
(4) (A) An electronic mail service provider
who has brought an action against a party for a violation subject to Section
17529.8 shall not bring an action against that party under this section for the
same unsolicited commercial electronic mail advertisement.
(B) An electronic mail service provider who
has brought an action against a party for a violation of this section shall not
bring an action against that party under Section 17529.8 for the same
unsolicited commercial electronic mail advertisement.