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.