BILL NUMBER: AB 2950 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 11, 2008
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 Sections 17529.1
and 17529.5 of the Business 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 define the term "header information" for
purposes of these provisions and would make it unlawful for a person
or entity to advertise in a commercial e-mail advertisement sent from
California or to a California e-mail address if the e-mail contains
or is accompanied by the third-partys e-mail address without the
permission of the third party. The 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. The
bill would require an enforcement action pursuant to these provisions
to be commenced within 3 years after the cause of action accrued.
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 17529.1 of the
Business and Professions Code is amended to read:
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) "Header information" means the source, destination, and
routing information attached to an electronic mail message, including
the originating domain name and originating electronic mail address,
and any other information that appears in the line identifying, or
purporting to identify, a person initiating the message.
(i)
(j) "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)
(k) "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)
(l) "Internet" has the meaning set forth in paragraph
(6) of subdivision (e) of Section 17538.
(l)
(m) "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)
(n) "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)
(o) "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)
(p) "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 (), with the advertiser
promoting the lease, sale, rental, gift offer, or other disposition
of any property, goods, services, or extension of credit.
SECTION 1. SEC. 2. Section 17529.5
of the Business and Professions Code is amended to read:
17529.5. (a) It is the intent of the Legislature that this
section, which prohibits all types of falsity and deception in
commercial e-mail messages, shall operate within the exception to
federal preemption to the full extent permitted by the CAN-SPAM Act
of 2003 (15 U.S.C. Sec. 7707(b)) and any other provision of federal
law.
(b) 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 or e-mail address without the
permission of the third party , provided that nothing
in this section shall be construed to affect comparative advertising
that references domain names .
(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)
(c) (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)
(d) 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.
(d)
(e) 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.
(f) Any enforcement action pursuant to this section shall be
commenced within three years after the cause of action accrued. No
cause of action barred under existing law on the effective date of
this subdivision shall be revived by its enactment.