A BILL
To enact section 2307.64 of the Revised Code
to regulate the transmission of electronic mail advertisements.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF
OHIO:
ARTICLE 1
INTERNET PRIVACY
Section 1. That section 2307.64 of the
Revised Code be enacted to read as follows:
Sec. 2307.64. (A) As used in this section:
(1) "Advertisement" has the same meaning as in section
4931.55 of the Revised Code.
(2) "Computer," "computer network," "computer program,"
"computer services," and "telecommunications device" have the same meanings
as in section 2913.01 of the Revised Code.
(3) "Electronic mail" means an electronic message that is
transmitted between two or more telecommunications devices or electronic
devices capable of receiving electronic messages, whether or not the message
is converted to hard copy format after receipt, and whether or not the
message is viewed upon the transmission or stored for later retrieval.
"Electronic mail" includes electronic messages that are transmitted through
a local, regional, or global computer network.
(4) "Electronic mail advertisement" means electronic mail
containing an advertisement.
(5) "Electronic mail service provider" means any person
that is an intermediary in sending and receiving electronic mail and that
provides to users of electronic mail services the ability to send or receive
electronic mail. "Electronic mail service provider" includes an internet
service provider.
(6) "Internet" has the same meaning as in section 341.42 of
the Revised Code.
(7) "Originating address" means the string of characters
used to specify the source of any electronic mail message.
(8) "Person" has the same meaning as in section 1.59 of the
Revised Code, but when a person is not an individual, the person responsible
for transmitting or causing to be transmitted an electronic mail
advertisement is the particular division of the partnership, corporation, or
other business entity actually responsible for the transmission of the
electronic mail advertisement.
(9) "Pre-existing business relationship" means that there
was a business transaction between the initiator and the recipient of a
commercial electronic mail message during the five-year period preceding the
receipt of that message. A pre-existing business relationship includes a
transaction involving the free provision of information, goods, or services
requested by the recipient. A pre-existing business relationship does not
exist after a recipient requests to be removed from the distribution lists
of an initiator pursuant to division (B) of this section and a reasonable
amount of time has expired since that request.
(10) "Receiving address" means the string of characters
used to specify a recipient with each receiving address creating a unique
and separate recipient.
(11) "Recipient" means a person who receives an electronic
mail advertisement at any one of the following receiving addresses:
(a) A receiving address furnished by an electronic mail
service provider that bills for furnishing and maintaining that receiving
address to a mailing address within this state;
(b) A receiving address ordinarily accessed from a
computer located within this state;
(c) A receiving address ordinarily accessed by a person
domiciled within this state;
(d) Any other receiving address with respect to which the
obligations imposed by this section can be imposed consistent with the
United States Constitution.
(B)(1) Except as otherwise provided in division (B)(3) of this section, a
person that transmits or causes to be transmitted to a recipient an
electronic mail advertisement shall clearly and conspicuously provide to the
recipient, within the body of the electronic mail advertisement, both of the
following:
(a) The person's name and complete residence or business
address and the electronic mail address of the person transmitting the
electronic mail advertisement;
(b) A notice that the recipient may decline to receive
from the person transmitting or causing to be transmitted the electronic
mail advertisement any additional electronic mail advertisements and a
detailed procedure for declining to receive any additional electronic mail
advertisements at no cost. The notice shall be of the same size of type as
the majority of the text of the message and shall not require that the
recipient provide any information other than the receiving
address.
(2) If the recipient of an electronic mail advertisement
uses the procedure contained in the notice described in division (B)(1)(b)
of this section to decline to receive any additional electronic mail
advertisements, the person that transmitted or caused to be transmitted the
original electronic mail advertisement, within a reasonable period of time,
shall cease transmitting or causing to be transmitted to the receiving
address any additional electronic mail advertisements.
(3) A person does not violate division (B) of this section
if the person transmits or causes to be transmitted to the recipient an
electronic mail advertisement when any of the following apply:
(a) The person has a pre-existing business or personal
relationship with the recipient.
(b) The recipient has consented or has agreed as a
condition of service to receive the electronic mail advertisement.
(c) The recipient receives the electronic mail
advertisement because another recipient forwarded the advertisement to
that recipient via an internet web site or another recipient made a direct
referral of that recipient to receive the
advertisement.
(C) No person shall use a computer, a computer network, or
the computer services of an electronic mail service provider to transmit an
electronic mail advertisement in contravention of the authority granted by, or
in violation of the policies related to electronic mail advertisements set by,
the electronic mail service provider if the electronic mail service provider
has provided the person notice of those policies. For the purposes of this
division, notice of those policies shall be deemed sufficient if an electronic
mail service provider maintains an easily accessible web page containing its
policies regarding electronic mail advertisements and can demonstrate that
notice was supplied via electronic means between the sending and receiving
computers.
(D) No electronic mail service provider shall be liable for
transmitting another person's electronic mail advertisement through its
service in violation of this section, or shall be liable for any action it
voluntarily takes in good faith to block the receipt or transmission through
its service of any electronic mail advertisement that it believes is, or will
be sent, in violation of this section.
(E) A recipient of an electronic mail advertisement
transmitted in violation of division (B) of this section may bring a civil
action against a person who transmitted that advertisement or caused it to be
transmitted. In that action, the recipient may recover the following:
(1) One hundred dollars for each violation, not to exceed a
total of fifty thousand dollars;
(2) Reasonable attorney's fees, court costs, and other
costs of bringing the action.
(F) An electronic mail service provider whose authority or
policy has been contravened in violation of division (C) of this section may
bring a civil action against a person who transmitted that advertisement or
caused it to be transmitted. In that action, the electronic mail service
provider may recover the following:
(1)(a) Fifty dollars for each violation of division (C) of this
section, not to exceed fifty thousand dollars;
(b) If a violation of division (C) of this section is a
willful or knowing violation, the court may increase the amount
recoverable to an amount not to exceed five hundred thousand dollars.
(c) If a violation of division (C) of this section is
accompanied by a violation of division (H) of this section, there shall be
no limit on the amount that may be recovered pursuant to this
section.
(2) Reasonable attorney's fees, court costs, and other
costs of bringing the action.
(G) In addition to any recovery that is allowed under
divisions (E) or (F) of this section, the recipient of an electronic mail
advertisement transmitted in violation of division (B) of this section or the
electronic mail service provider of an advertisement transmitted in violation
of division (C) of this section may apply to the court of common pleas of the
county in which the recipient resides or the service provider is located for
an order enjoining the person who transmitted or caused to be transmitted that
electronic mail advertisement from transmitting or causing to be transmitted
to the recipient any additional electronic mail advertisement.
(H) No person shall use a computer, a computer network, a
computer program, or the computer services of an electronic mail service
provider with the intent to forge an originating address or other routing
information, in any manner, in connection with the transmission of an
electronic mail advertisement through or into the network of an electronic
mail service provider or its subscribers. Each use of a computer, a computer
network, a computer program, or the computer services of an electronic mail
service provider in violation of this division constitutes a separate offense.
A person who violates this division is guilty of forgery under section 2913.31
of the Revised Code.
