MISSOURI REVISED STATUTES
TITLE 26. TRADE AND
COMMERCE
CHAPTER 407. MERCHANDISING PRACTICES
ELECTRONIC MAIL
PRACTICES
(Enacted in 2000)
Amended by House Bill 228
(2003)
(approved July 11, 2003; effective August 28, 2003)
§ 407.1120. As used in sections 407.1120 to
407.1132, the following terms mean:
(1) "Assist the transmission", actions taken by a person to
provide substantial assistance or support which enables any person to
formulate, compose, send, originate, initiate or transmit a commercial
electronic mail message;
(2) "Commercial electronic mail message", an electronic mail
message sent for the purpose of promoting real property, goods or services for
sale or lease. Commercial electronic mail message does not include:
(a) An electronic mail message to which an interactive
computer service provider has attached an advertisement in exchange for free
use of an electronic mail account, when the user has agreed to such an
arrangement;
(b) An electronic mail message between persons with a prior
business relationship; or
(c) An electronic mail message between persons with a
personal relationship;
(3) "Electronic mail address", a destination, commonly
expressed as a string of characters, to which electronic mail may be sent or
delivered;
(4) "Initiate the transmission", the action by the original
sender of an electronic mail message, but not the action by any intervening
interactive computer service that may handle or retransmit the message, unless
such intervening interactive computer service assists in the transmission of
an electronic mail message when it knows, or consciously avoids knowing, that
the person initiating the transmission is engaged, or intends to engage, in
any act or practice that violates sections 407.1120 to 407.1132;
(5) "Interactive computer service", any information service,
system or access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service or
system that provides access to the Internet and such systems operated or
services offered by libraries or educational institutions;
(6) "Internet domain name", a globally unique, hierarchical
reference to an Internet host or service, assigned through centralized
Internet naming authorities, comprising a series of character strings
separated by periods, with the right-most string specifying the top of the
hierarchy.
§ 407.1123.
1. No person or entity conducting business in this state
shall electronically mail (e-mail) or cause to be e-mailed, documents
consisting of advertising material for the lease, sale, rental, gift offer or
other disposition of any realty, goods, services or extensions of credit
without a toll-free telephone number or valid sender operated return e-mail
address that the recipient of the unsolicited documents may call or e-mail to
notify the sender not to e-mail any further unsolicited documents.
2. It is an unlawful merchandising practice pursuant to
section 407.020 to assist in the transmission of an unsolicited commercial
electronic mail message when the person providing the assistance knows, or
consciously avoids knowing, that the initiator of the commercial electronic
mail message is engaged, or intends to engage, in any act or practice that
violates sections 407.1120 to 407.1132.
3. As used in this section, the phrase "assist or initiate
the transmission" does not include or refer to the transmission of any
commercial electronic mail message by a telecommunications utility or Internet
service provider to the extent that the telecommunications utility or Internet
service provider merely carries such transmission over its network.
§ 407.1126. It is an unlawful merchandising practice
pursuant to section 407.020 to violate the provisions of sections 407.1120 to
407.1132.
§ 407.1129.
1. Damages to the recipient of a commercial electronic mail
message sent in violation of sections 407.1120 to 407.1132 are five hundred
dollars, or actual damages, whichever is greater.
2. Damages to an interactive computer service resulting from
a violation of sections 407.1120 to 407.1132 are one thousand dollars, or
actual damages, whichever is greater.
§ 407.1132.
1. An interactive computer service may, upon its own
initiative, block the receipt or transmission through its service of any
commercial electronic mail that it reasonably believes is, or will be, sent in
violation of sections 407.1120 to 407.1132.
2. No interactive computer service may be held liable for any
action voluntarily taken in good faith to block the receipt or transmission
through its service of any commercial electronic mail which it reasonably
believes is, or will be, sent in violation of sections 407.1120 to
407.1132.
3. Sections 407.1120 to 407.1132 shall be of no force and
effect on and after the date that federal law is enacted that prohibits or
otherwise regulates the transmission of unsolicited commercial electronic mail
messages.
§ 407.1135. As used in sections 407.1135 to
407.1147, the following words and phrases mean:
(1) "Commercial electronic mail", an electronic mail message
sent for the purpose of encouraging the purchase or rental of, or investment
in, property, goods, or services;
(2) "Electronic mail address", a destination, commonly
expressed as a sequence of characters, to which commercial electronic mail may
be sent or delivered;
(3) "Established business relationship", an existing
relationship formed by a voluntary communication between a person or entity
and the recipient with or without an exchange of consideration, on the basis
of an inquiry, application, purchase, or use by the recipient regarding
products or services offered by such person or entity;
(4) "Initiate the transmission", the action by the original
sender of an unsolicited commercial electronic mail solicitation that results
in receipt by a subscriber of that solicitation, including commercial
electronic mail received by a subscriber which was sent by a third party at
the request of or direction of the original sender;
(5) "Subscriber", any person, corporation, partnership, or
other entity who has subscribed to an interactive computer service and has
been designated with one or more electronic mail addresses;
(6) "Unsolicited commercial electronic mail", a commercial
electronic mail message sent without the consent of the recipient, by a person
with whom the recipient does not have an established business relationship,
other than:
(a) A commercial electronic mail message responding to an
inquiry from a subscriber who has requested further information and provided
a commercial electronic mail address;
(b) A commercial electronic mail message initiated by a
person licensed by the state of Missouri to carry out a trade, occupation,
or profession who is setting or attempting to set an appointment for actions
related to that licensed trade, occupation, or profession;
(c) A commercial electronic mail message sent to a
subscriber that was in an established business relationship with the sender,
including a parent or subsidiary business organization of the sender that
shares the same brand name, within the previous twenty-four months unless
the recipient requests to be removed from the entity's electronic mail list
in accordance with section 407.1123;
(d) A commercial electronic mail communication sent to a
subscriber from an original sender which is a bank, farm credit service, or
credit union shall not be considered unsolicited commercial electronic mail
for purposes of section 407.1135 to 407.1147;
(e) A commercial electronic mail message that is sent to a
subscriber from an original sender who has a personal relationship with the
subscriber; or
(f) A commercial electronic mail message from the original
sender that is indirectly received by a subscriber when another subscriber
voluntarily forwards that communication without the knowledge of the
original sender and without any consideration provided by the original
sender to the subscriber forwarding the communication.
§ 407.1144.
1. It shall be a violation of this section for any person or
entity who initiates the transmission of any commercial electronic mail
message to any subscriber in this state to provide a false identity or false
or misleading information in the subject line.
2. It shall be a violation of this section for any person
that sends an unsolicited commercial electronic mail message to fail to use
the exact characters "ADV:" as the first four characters in the subject line
of the unsolicited commercial electronic mail message.
3. It shall be a violation of this section for any person
that sends an unsolicited commercial electronic mail message that contains
obscene material as defined in section 573.010, RSMo, or references a web site
that contains obscene material to fail to use the exact characters "ADV:ADLT"
as the first eight characters in the subject line of the unsolicited
commercial electronic mail message that contains obscene material.
4. It shall be a violation of this section to initiate the
transmission of any unsolicited commercial electronic mail to a subscriber in
this state who has notified a sender not to initiate the transmission of any
further unsolicited commercial electronic mail. For purposes of this
subsection, a subscriber is deemed to have notified a sender not to initiate
the transmission of any further unsolicited commercial electronic mail if the
subscriber:
(1) Replies to a sender at the valid sender-operated return
electronic mail address or the sender's toll-free telephone number with
directions not to initiate the transmission of any further unsolicited
commercial electronic mail as provided in section 407.1123; or
(2) Otherwise gives actual notice to a sender not to
initiate the transmission of further unsolicited commercial electronic mail;
or
(3) Notifies the attorney general if a sender fails to
provide a toll-free telephone number or valid sender-operated return
electronic mail address as required by section 407.1123.
5. The attorney general shall promulgate rules and
regulations as he or she deems necessary and appropriate to fully implement
the provisions of sections 407.1135 to 407.1147.
§ 407.1147.
1. The attorney general may initiate proceedings relating to
a knowing violation of sections 407.1135 to 407.1147. Such proceedings may
include an injunction, a civil penalty up to a maximum of five thousand
dollars for each knowing violation, not to exceed twenty-five thousand dollars
per day, in any court of competent jurisdiction. The attorney general may
issue investigative demands, issue subpoenas, administer oaths, and conduct
hearings in the course of investigating a violation of sections 407.1135 to
407.1147.
2. In addition to the penalties provided in subsection 1 of this
section, any person or entity that violates sections 407.1135 to 407.1147
shall be subject to all penalties, remedies and procedures provided in
sections 407.010 to 407.130. The remedies available in this section are
cumulative and in addition to any other remedies available by law. Any civil
penalties recovered pursuant to this section shall be credited to the
merchandising practices revolving fund.
3. It shall be a defense in any action or proceeding brought pursuant
to this section that the defendant has established and implemented, with due
care, reasonable practices and procedures to effectively prevent the
transmission of unsolicited commercial electronic mail messages in violation
of section 407.1144.
4. No action or proceeding may be brought pursuant to this section:
(1) More than two years after the person bringing the
action knew or should have known of the occurrence of the alleged violation;
or
(2) More than two years after the termination of any
proceeding or action arising out of the same violation or violations by the
state of Missouri, whichever is later.
5. A court of this state may exercise personal jurisdiction
over any nonresident or his or her executor or administrator as to an action
or proceeding authorized by this section in the manner otherwise provided by
law.
6. No telecommunications utility, electronic mail service
provider, or internet service provider shall be liable for violations of
section 407.1144 when:
(1) It is an intermediary between the sender and recipient in
the transmission of an email that violates sections 407.1135 to 407.1147;
or
(2) It provides transmission of unsolicited commercial
electronic mail messages over the provider's computer network or facilities;
or
(3) It voluntarily takes action in good faith to block the
receipt or transmission through its service of any electronic mail
advertisements that it believes are, or will be, sent in violation of sections
407.1135 to 407.1147.
