72nd OREGON LEGISLATIVE ASSEMBLY
2003 Regular
Session
CHAPTER ___
(S.B. 910
(2003), approved September 17, 2003)
AN ACT
Relating to electronic mail messages; creating new provisions; and amending
ORS 646.607.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Legislative Assembly
finds:
(a) The economic harm and invasion of privacy resulting
from the transmission and receipt of unsolicited commercial electronic mail
messages constitute a threat to the welfare of the people of this state.
(b) Unsolicited commercial electronic mail messages cost
Oregonians hundreds of thousands of dollars each year because of:
(A) The need to acquire additional capacity for computer
systems;
(B) The need to acquire software programs to filter and
control unsolicited commercial electronic mail messages;
(C) The transmission of computer viruses by unsolicited
commercial electronic mail messages; and
(D) Time and productivity lost when businesses and public
bodies must devote personnel resources:
(i) To creating and maintaining local electronic mail
message filters;
(ii) To removing infestations of unsolicited commercial
electronic mail messages from networks and individual mailboxes;
(iii) To unclogging transmission paths; and
(iv) To repairing and restarting computer systems that
have experienced resulting system failures.
(c) Unsolicited commercial electronic mail messages can be
used to transmit pornographic material in a manner that is not readily
apparent to recipients, which can result in the exposure of minors to
pornographic material.
(d) Existing state and federal laws are inadequate to
prevent the harm to the public welfare that results from the transmission
and receipt of unsolicited commercial electronic mail messages.
(e) Requiring persons that transmit unsolicited commercial
electronic mail messages to label the messages in a manner readily
recognizable by a recipient will enable recipients to recognize unsolicited
commercial electronic mail messages and choose whether to avoid receiving or
reading the messages.
(2) The purpose of sections 3 (2) and 4 of this 2003 Act is
to prevent the harmful effects set forth in subsection (1)(b) and (c) of this
section, which result from the receipt of unsolicited electronic mail messages
that are not labeled in a manner readily recognizable by a recipient as
unsolicited electronic mail messages. Requiring persons that transmit
unsolicited electronic mail messages to label the messages as set forth in
section 4 of this 2003 Act enables recipients of unsolicited electronic mail
messages to recognize and choose whether to avoid receiving and reading the
messages. + }
SECTION 2. { + As used in sections 1 to 8 of
this 2003 Act:
(1) 'Business relationship' means a voluntary exchange of
communication initiated by an electronic mail message recipient's inquiry
about, application for or purchase or use of real estate, goods or services.
(2) 'Commercial electronic mail message' means an electronic
mail message transmitted for the purpose of encouraging the purchase, rental
or investment in real estate, goods or services.
(3) 'Control' has the meaning given that term in ORS 60.825.
(4) 'Domain name' means an alphanumeric designation that is
registered with or assigned by a domain name registrar as part of an
electronic address on the Internet.
(5) 'Electronic mail message' means an electronic message or
computer file that contains an image of a message transmitted between
computers or electronic terminals. 'Electronic mail message' does not include
a document transmitted by a facsimile machine as defined in ORS 646.872.
(6) 'Electronic mail service provider' means a person that
provides:
(a) An end user with electronic mail message services,
including the ability to send or receive electronic mail messages; and
(b) A system that connects the user to a computer server
and the Internet.
(7) 'Person' has the meaning given that term in ORS 646.605.
(8) 'Subsidiary' means a person that directly, or indirectly
through one or more intermediaries, is controlled by, or is under common
control with, another person.
(9) 'Unsolicited commercial electronic mail message' means a
commercial electronic mail message transmitted without the consent of the
recipient. + }
SECTION 3. { + In the course of offering real
estate, goods or services for sale, rent or other disposition, a person may
not:
(1) Transmit, ask another person to transmit or assist in the
transmission of an electronic mail message that:
(a) Uses an Internet domain name without permission of the
person that holds the license to use the name;
(b) Contains false or misleading information in the subject
line; or
(c) Misrepresents or hinders a person from determining the
point of origin or transmission path of the electronic mail message.
(2) Transmit, ask a person to transmit or assist in the
transmission of an unsolicited commercial electronic mail message to a person
in this state. + }
SECTION 4. { + (1) Section 3 (2) of this 2003
Act does not apply if:
(a) The person that transmits the electronic mail message:
(A) Has established a business relationship with the
person that receives the electronic mail message; + }
{ + (B)(i) Controls the person that established the
business relationship; and
(ii) Offers to the person that receives the electronic
mail message real estate, goods or services offered by the person that
established the business relationship;
(C)(i) Is a subsidiary of the person that established the
business relationship;
(ii) Shares the principal name of the person that
established the business relationship;
(iii) Is located on the same premises as the person
that established the business relationship; and
(iv) Offers to the person that receives the electronic
mail message real estate, goods or services offered by the person that
established the business relationship;
(D) Is an organization and the electronic mail message is
solely to communicate with a member, employee or contractor of the
organization; or
(E) Labels the message by including in the subject line
the term 'ADV:' in a type size readily visible to the recipient. The label
shall immediately follow the colon after the word ' subject' or some
abbreviation of the word 'subject'; or
(b) The predecessor of the person that transmits the
electronic mail message had a business relationship with the person that
receives the electronic mail message.
(2) Section 3 of this 2003 Act does not apply to an
electronic mail service provider acting only as an intermediary between the
persons that transmit and receive the electronic mail message. + }
SECTION 5. { + (1) A person whose Internet
domain name is used without permission in violation of section 3 (1)(a) of
this 2003 Act may bring an action against the person that violated section 3
(1)(a) of this 2003 Act to recover actual damages or liquidated damages of
$500, whichever is greater.
(2) A person that receives an electronic mail message
transmitted in violation of section 3 (1)(b) or (c) of this 2003 Act may bring
an action against the person that violated section 3 (1)(b) or (c) of this
2003 Act to recover actual damages or liquidated damages of $500, whichever is
greater.
(3) A person that receives an electronic mail message
transmitted in violation of section 3 (2) of this 2003 Act may bring an action
against the person that violated section 3 (2) of this 2003 Act to recover
actual damages or liquidated damages of $200, whichever is greater.
(4) The remedies provided by subsections (1) to (3) of this
section apply to each electronic mail message transmitted in violation of
section 3 of this 2003 Act. If the person elects to recover liquidated damages
in lieu of actual damages, the court may not award the person more than
$25,000 per day.
(5) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
(6)(a) A person who is an individual may bring the action in
the circuit court of the county in which the individual resides.
(b) A person that is not an individual may bring the action
in the circuit court of a county in which the person maintains an office.
(7) The court may award reasonable attorney fees to a
plaintiff that prevails in an action on a claim under this section.
(8) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this state. + }
SECTION 6. { + (1) An electronic mail service
provider whose service is used by a person to transmit an electronic mail
message in violation of section 3 (1) of this 2003 Act may bring an action
against the person that violated section 3 (1) of this 2003 Act to recover
actual damages or liquidated damages of $1,000, whichever is greater.
(2) An electronic mail service provider whose service is used
by a person to transmit an electronic mail message in violation of section 3
(2) of this 2003 Act may bring an action against the person that violated
section 3 (2) of this 2003 Act to recover actual damages or liquidated damages
of $1,000, whichever is greater.
(3) The remedies provided by subsections (1) and (2) of this
section apply to each electronic mail message transmitted in violation of
section 3 of this 2003 Act. If the person elects to recover liquidated damages
in lieu of actual damages, the court may not award the person more than
$25,000 per day.
(4) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
(5) The electronic mail service provider may bring the action
in the circuit court of a county in which:
(a) The provider maintains an office; or
(b) The person that violated section 3 of this 2003 Act has
sufficient contacts for the court to exercise personal jurisdiction over the
person.
(6) The court may award reasonable attorney fees to an
electronic mail service provider that prevails in an action on a claim under
this section.
(7) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this state. + }
SECTION 7. { + If an electronic mail service
provider acts in good faith to block the receipt, or transmission through the
provider's service, of electronic mail messages that the provider anticipates
persons will transmit in violation of section 3 of this 2003 Act, a court may
not, for blocking receipt or transmission of the electronic mail messages,
find the provider to be in violation of section 3 of this 2003 Act. + }
SECTION 8. { + Notwithstanding ORCP 32, a court
may not order an action to be maintained as a class action if the action
includes a claim under section 5 of this 2003 Act and the person against which
the claim is asserted had, at the time of the transmission of the electronic
mail message that forms the basis of the claim, established a business
relationship with the person that received the message. + }
SECTION 9. ORS 646.607 is amended to read:
646.607. A person engages in an unlawful practice when in the course of the
person's business, vocation or occupation the person:
(1) Employs any unconscionable tactic in connection with
sale, rental or other disposition of real estate, goods or services, or
collection or enforcement of an obligation; { - or - }
{ + (2) Violates section 3 of this 2003 Act; or + } { - (2) -
} { + (3) + }Fails to deliver all or any portion of real estate, goods or
services as promised, and upon request of the customer, fails to refund any
money { - which - } { + that + }has been received from the customer { - which
- } { + that + }was for the purchase of the undelivered real estate, goods or
services and { - which - } { + that + }is not retained by the seller pursuant
to any right, claim or defense asserted in good faith. This subsection does
not create a warranty obligation and { - shall - } { + does + }not apply to a
dispute over the quality of real estate, goods or services delivered to a
customer.
SECTION 10. ORS 646.607, as amended by section 9
of this 2003 Act, is amended to read:
646.607. A person engages in an unlawful practice when in the
course of the person's business, vocation or occupation the person:
(1) Employs any unconscionable tactic in connection with
sale, rental or other disposition of real estate, goods or services, or
collection or enforcement of an obligation; { + or + }
{ - (2) Violates section 3 of this 2003 Act; or - }
{ - (3) - } { + (2) + } Fails to deliver all or any portion
of real estate, goods or services as promised, and upon request of the
customer, fails to refund any money that has been received from the customer
that was for the purchase of the undelivered real estate, goods or services
and that is not retained by the seller pursuant to any right, claim or defense
asserted in good faith. This subsection does not create a warranty obligation
and does not apply to a dispute over the quality of real estate, goods or
services delivered to a customer.
SECTION 11. { + (1) Section 3 of this 2003 Act
applies to transmissions of electronic mail messages occurring on or after
March 1, 2004.
(2) Sections 5 and 6 of this 2003 Act and the amendments to
ORS 646.607 by section 9 of this 2003 Act apply to violations occurring on or
after March 1, 2004. + }
SECTION 12. { + The amendments to ORS 646.607 by
section 10 of this 2003 Act become operative on January 2, 2006. + }
SECTION 13. { + Sections 1 to 8 and 11 of this
2003 Act are repealed on January 2, 2006. + }
