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Third Substitute H.B. 80
Senator David H. Steele proposes the following substitute bill:
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UNSOLICITED COMMERCIAL EMAIL
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Patrice M. Arent
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This act enacts provisions imposing requirements on persons who send unsolicited
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commercial email. The act provides for a cause of action in favor of those who receive an
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unsolicited commercial email that violates those requirements and provides a defense to an
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action.
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This act affects sections of Utah Code Annotated 1953 as follows:
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ENACTS:
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13-34-101, Utah Code Annotated 1953
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13-34-102, Utah Code Annotated 1953
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13-34-103, Utah Code Annotated 1953
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13-34-104, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
13-34-101
is enacted to read:
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CHAPTER 34. UNSOLICITED COMMERCIAL EMAIL ACT
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13-34-101. Title.
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This chapter is known as the "Unsolicited Commercial Email Act."
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Section 2.
Section
13-34-102
is enacted to read:
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13-34-102. Definitions.
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As used in this chapter:
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(1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of
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goods, services, or real property.
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(2) "Computer network" means two or more computers that are interconnected to exchange
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electronic messages, files, data, or other information.
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(3) "Email" means an electronic message, file, data, or other information that is
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transmitted:
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(a) between two or more computers, computer networks, or electronic terminals; or
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(b) within a computer network.
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(4) "Email address" means a destination, commonly expressed as a string of characters,
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to which email may be sent or delivered.
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(5) "Email service provider" means a person that:
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(a) is an intermediary in the transmission of email from the sender to the recipient; or
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(b) provides to end users of email service the ability to send and receive email.
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(6) "Internet domain name" means a globally unique, hierarchal reference to an Internet
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host or service, assigned through centralized Internet authorities, comprising a series of character
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strings separated by periods, with the right-most string specifying the top of the hierarchy.
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(7) (a) "Unsolicited" means without the recipient's express permission, except as provided
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in Subsection (7)(b).
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(b) A commercial email is not "unsolicited" if the sender has a preexisting business or
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personal relationship with the recipient.
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Section 3.
Section
13-34-103
is enacted to read:
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13-34-103. Unsolicited commercial email -- Requirements.
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(1) Each person who sends or causes to be sent an unsolicited commercial email through
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the intermediary of an email service provider located in the state or to an email address held by a
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resident of the state shall:
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(a) conspicuously state in the email the sender's:
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(i) legal name;
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(ii) correct street address; and
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(iii) valid Internet domain name;
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(b) include in the email a subject line that contains "ADV:" as the first four characters;
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(c) provide the recipient a convenient, no-cost mechanism to notify the sender not to send
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any future email to the recipient, including return email to a valid, functioning return electronic
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address; and
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(d) conspicuously provide in the text of the email a notice that informs the recipient that
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the recipient may conveniently and at no cost be excluded from future commercial email from the
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sender.
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(2) A person who sends or causes to be sent an unsolicited commercial email through the
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intermediary of an email service provider located in the state or to an email address held by a
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resident of the state may not:
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(a) use a third party's Internet domain name in identifying the point of origin or in stating
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the transmission path of the email without the third party's consent;
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(b) misrepresent any information in identifying the point of origin or the transmission path
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of the email; or
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(c) fail to include in the email the information necessary to identify the point of origin of
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the email.
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(3) If the recipient of an unsolicited commercial email notifies the sender that the recipient
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does not want to receive future commercial email from the sender, the sender may not send that
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recipient a commercial email, either directly or through a subsidiary or affiliate.
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Section 4.
Section
13-34-104
is enacted to read:
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13-34-104. Civil action for violation -- Election on damages -- Costs and attorney fees
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-- Defense.
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(1) For any violation of a provision of Section
13-34-103
, an action may be brought by:
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(a) a person who received the unsolicited commercial email with respect to which the
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violation under Section
13-34-103
occurred; or
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(b) an email service provider through whose facilities the unsolicited commercial email
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was transmitted.
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(2) In each action under Subsection (1):
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(a) a recipient or email service provider may:
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(i) recover actual damages; or
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(ii) elect, in lieu of actual damages, to recover the lesser of:
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(A) $10 per unsolicited commercial email received by the recipient or transmitted through
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the email service provider; or
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(B) $25,000 per day that the violation occurs; and
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(b) each prevailing recipient or email service provider shall be awarded costs and
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reasonable attorney fees.
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(3) An email service provider does not violate Section
13-34-103
solely by being an
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intermediary between the sender and recipient in the transmission of an email that violates that
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section.
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(4) The violation of Section
13-34-103
by an employee does not subject the employee's
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employer to liability under that section if the employee's violation of Section
13-34-103
is also a
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violation of an established policy of the employer that requires compliance with the requirements
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of Section
13-34-103
.
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(5) It is a defense to an action brought under this section that the unsolicited commercial
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email was transmitted accidentally.
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