BILL NUMBER: AB 2950	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 8, 2008
	AMENDED IN ASSEMBLY  APRIL 23, 2008
	AMENDED IN ASSEMBLY  APRIL 3, 2008

INTRODUCED BY   Assembly Member Huffman

                        FEBRUARY 22, 2008

   An act  to amend Section 17529.5 of the Busin   ess
and Professions Code,   relating to advertising.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2950, as amended, Huffman.  Commercial e-mail messages: falsity
and deception.
   Existing state law prohibits a person or entity from advertising
in a commercial e-mail advertisement that is sent either from
California or to a California e-mail address if the e-mail contains
or is accompanied by a 3rd party's domain name without permission,
contains or is accompanied by falsified, misrepresented, or forged
header information, or has a misleading subject line, and makes a
violation of the prohibition a misdemeanor. Existing law authorizes
the Attorney General, an e-mail service provider, or the recipient of
an unsolicited commercial e-mail advertisement transmitted in
violation of these provisions to bring an action to recover
liquidated damages of $1,000 per unsolicited commercial e-mail
advertisement transmitted in violation of the provisions, up to
$1,000,000 per incident, subject to reduction by the court, as
specified.  Existing law specifies proper venue in  
civil actions.  
   This bill would declare the intent of the Legislature to regulate
false and deceptive commercial electronic mail messages, as
specified.  
   This bill would also authorize a district attorney or a city
attorney to bring an action under the above provisions. The bill
would provide that venue in cases brought under the above provisions
is also appropriate in any county in which the recipient of the
commercial e-mail message resides. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 17529.5 of the  
Business and Professions Code   is amended to read: 
   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  , a district attorney, or a city
attorney  .
   (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,  district attorney, or city attorney,  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. 

   (c) Venue for an action brought under this section is appropriate
in any county in which the recipient of the commercial e-mail message
resides or in any county appropriate pursuant to Chapter 1
(commencing with Section 392) of Title 2 of Part 2 of the Code of
Civil Procedure. 
   (c) 
    (d)  A violation of this section is a misdemeanor,
punishable by a fine of not more than one thousand dollars ($1,000),
imprisonment in a county jail for not more than six months, or both
that fine and imprisonment. 
  SECTION 1.    It is the intent of the Legislature
to regulate false and deceptive commercial electronic mail messages
within the exception to federal preemption to the full extent
permitted by the CAN-SPAM Act of 2003 (17 U.S.C. Sec. 7707(b)) and
any other provision of state and federal law.