SOUTH DAKOTA
SENATE BILL 183 (2002)
(approved by Governor February 28,
2002)
AN ACT
ENTITLED, An Act to prohibit misleading unsolicited commercial e-mails.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter
37-24 be amended by adding thereto a NEW SECTION to read as follows:
Terms used in this Act mean:
(1) "Assist the transmission," actions taken by a person to
provide substantial assistance or support that enables any person to
formulate, compose, send, originate, initiate, or transmit a commercial
electronic mail message if 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 practice that violates
this chapter;
(2) "Commercial electronic mail message," an electronic
mail message sent for the purpose of promoting real property, goods, or
services for sale or lease. The term does not mean 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, if the
sender has agreed to such an arrangement;
(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. The term does not refer to 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 if 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 this
chapter;
(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
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.
Section 2. That chapter
37-24 be amended by adding thereto a NEW SECTION to read as follows:
No person may initiate the transmission, conspire with
another to initiate the transmission, or assist the transmission, of a
commercial electronic mail message from a computer located in South Dakota or
to an electronic mail address that the sender knows, or has reason to know, is
held by a South Dakota resident that:
(1) Uses a third party's internet domain name without
permission of the third party, or otherwise misrepresents or obscures any
information in identifying the point of origin or the transmission path of a
commercial electronic mail message; or
(2) Contains false or misleading information in the subject
line.
For purposes of this section, a person knows that the
intended recipient of a commercial electronic mail message is a South Dakota
resident if that information is available, upon request, from the registrant
of the internet domain name contained in the recipient's electronic mail
address.
Section 3. That chapter
37-24 be amended by adding thereto a NEW SECTION to read as follows:
The Legislature finds that the practices covered by this Act
are matters vitally affecting the public interest for the purpose of
protecting the public. A violation of this Act is not reasonable in relation
to the development and preservation of business and is an unfair or deceptive
act in trade or commerce and an unfair method of competition for the purpose
of applying this chapter.
Section 4. That chapter
37-24 be amended by adding thereto a NEW SECTION to read as follows:
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 this Act.
No interactive computer service is 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 this Act.
Section 5. That chapter
37-24 be amended by adding thereto a NEW SECTION to read as follows:
A recipient or a provider of internet access services may
bring either or both of the following actions:
(1) An action based on a violation of section 2 of this Act
to enjoin such violation.
(2) An action to recover damages for such a violation in an
amount equal to the greater of:
(a) The amount of the actual monetary loss; or
(b) Five hundred dollars for each violation, not to
exceed a total of ten thousand dollars.
If the court finds that the defendant willfully, knowingly,
or repeatedly violated section 2 of this Act, the court may increase the
amount of the award to an amount equal to not more than three times the amount
available under this section.
In any such action, the court may require an undertaking for
the payment of the costs of such action, and assess reasonable costs,
including reasonable attorneys' fees, against any party.
At the request of any party to an action brought pursuant to
this section or any other participant in such an action, the court may issue
protective orders and conduct legal proceedings in such a way as to protect
the secrecy and security of the computer, computer network, computer data,
computer program, and computer software involved in order to prevent possible
recurrence of the same or a similar act by another person and to protect any
trade secrets of any such party or participant.
