CALIFORNIA BUSINESS AND PROFESSIONS CODE
DIVISION 7, PART 3, CHAPTER 1
ARTICLE 1.8. Restrictions On Unsolicited Commercial E-mail Advertisers(added by Stats. 2003 ch. 487 (S.B. 186), approved September 23, 2003;
amended by Stats. 2004 ch. 183 (A.B. 3082), approved July 19, 2004;
and Stats. 2004 ch. 571 (S.B. 1457), approved Sept. 17, 2004)
§ 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, 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 an 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. (a) It is unlawful for any person or entity
to advertise in a commercial e-mail advertisement either sent from California
or sent to a California electronic mail address under any of the
following circumstances:
(1) The e-mail advertisement contains or is accompanied by a
third-party’s domain name without the permission of the third party.
(2) The e-mail advertisement contains or is accompanied by
falsified, misrepresented, 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.
(3) The 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.
(b) (1) (A) In addition to any other remedies provided by any
other provision of law, the following may bring an action against a
person or entity that violates any provision of this section:
(i) The Attorney General.
(ii) An electronic mail service provider.
(iii) A recipient of an unsolicited commercial e-mail
advertisement, as defined in Section 17529.1.
(B) A person or entity bringing an action pursuant to subparagraph
(A) may recover either or both of the following:
(i) Actual damages.
(ii) Liquidated damages of one thousand dollars ($1,000) for each
unsolicited commercial e-mail advertisement transmitted in violation
of this section, up to one million dollars ($1,000,000) per incident.
(C) The recipient, an electronic mail service provider, or the
Attorney General, if the prevailing plaintiff, may also recover
reasonable attorney’s fees and costs.
(D) However, there shall not be a cause of action under this
section against an electronic mail service provider that is only
involved in the routine transmission of the e-mail advertisement over
its computer network.
(2) 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 section, the court shall
reduce the liquidated damages recoverable under paragraph (1) 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.
(3) (A) A person who has brought an action against a party under
this section shall not bring an action against that party under
Section 17529.8 or 17538.45 for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1.
(B) A person who has brought an action against a party under
Section 17529.8 or 17538.45 shall not bring an action against that
party under this section for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1.§ 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 Stats. 2003 ch. 487 (S.B. 186), approved September 23, 2003,
and Stats. 2004 ch. 183 (A.B. 3082), approved July 19, 2004)
§ 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, 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 this 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 under 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.