Introduced Version




SENATE BILL No. 111

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 24-5-20; IC 24-5-21.

Synopsis: Unsolicited electronic mail advertising. Prohibits a registered user of an electronic mail service provider from using or causing to be used the provider's equipment located in Indiana in violation of the provider's policy prohibiting or restricting the use of its equipment for the initiation of unsolicited electronic mail advertisements. Prohibits a person from using or causing to be used, by initiating an unsolicited electronic mail advertisement, an electronic mail service provider's equipment located in Indiana in violation of the provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited electronic mail advertisements to its registered users. Allows an electronic mail service provider whose policy is

(Continued next page)

Effective: July 1, 1999.



Howard


    January 6, 1999, read first time and referred to Committee on Corrections, Criminal and Civil Procedures.




Digest Continued

violated to bring a civil action to recover damages. Allows the court to award reasonable attorney's fees to a prevailing party in that action. Makes delivery of an unsolicited electronic mail advertisement a deceptive act if the advertisement is sent after the recipient has notified the sender not to send further advertisements, the advertisement fails to include certain information, or the advertiser fails to provide a return electronic mail address or toll free telephone number where a recipient of the advertisement may contact the advertiser.


Introduced

First Regular Session 111th General Assembly (1999)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 1998 General Assembly.

SENATE BILL No. 111


    A BILL FOR AN ACT to amend the Indiana Code concerning trade regulations; consumer sales and credit.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 24-5-20 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1999]:
     Chapter 20. Unauthorized Use of Electronic Mail Service Provider's Equipment
    Sec. 1. This chapter does not require an electronic mail service provider to create or modify any of its policies.
    Sec. 2. This chapter does not limit or restrict any of the following:
        (1) The rights of an electronic mail service provider under 47 U.S.C. 230(c)(1).
        (2) 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.
        (3) The remedies granted to an electronic mail service provider or any other person by any other law.
    Sec. 3. As used in this chapter, "electronic mail advertisement" means an electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of real property, personal property, services, or an extension of credit to the recipient.
    Sec. 4. As used in this chapter, "electronic mail service provider" means a business or organization qualified or registered to do business in Indiana that provides registered users the ability to send or receive electronic mail through equipment located in Indiana and that is an intermediary in sending or receiving electronic mail.
    Sec. 5. As used in this chapter, "initiation" of an unsolicited electronic mail advertisement refers to the action by the initial sender of the electronic mail advertisement. The term does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.
    Sec. 6. As used in this chapter, "registered user" means an individual or any other person that maintains an electronic mail address with an electronic mail service provider.
    Sec. 7. As used in this chapter, "unsolicited electronic mail advertisement" means an electronic mail advertisement that meets both of the following requirements:
        (1) It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.
        (2) It is not sent at the request of or with the express consent of the recipient.
    Sec. 8. An electronic mail service provider may bring a civil action against a registered user of the electronic mail service provider that uses or causes to be used the electronic mail service provider's equipment located in Indiana in violation of the electronic mail service provider's policy prohibiting or restricting the use of its service or equipment for the initiation of unsolicited electronic mail advertisements.
    Sec. 9. An electronic mail service provider may bring a civil action against a person that uses or causes to be used, by initiating an unsolicited electronic mail advertisement, an electronic mail service provider's equipment located in Indiana in violation of the electronic mail service provider's policy prohibiting or restricting the use of its equipment to deliver unsolicited electronic mail advertisements to its registered users.
    Sec. 10. In a civil action under section 8 or 9 of this chapter, the electronic mail service provider must prove that before the alleged violation, the defendant had actual notice of both of the following:
        (1) The electronic mail service provider's policy on unsolicited electronic mail advertising.
        (2) 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 Indiana.
    Sec. 11. In a civil proceeding under section 8 or 9 of this chapter, an electronic mail service provider is entitled to recover the greater of either:
        (1) the actual monetary loss suffered by that provider by reason of the violation; or
        (2) liquidated damages of fifty dollars ($50) for each electronic mail message initiated or delivered in violation of section 8 or 9 of this chapter;
up to a maximum of twenty-five thousand dollars ($25,000) per day.
    Sec. 12. In a civil proceeding under section 8 or 9 of this chapter, the court may award costs and reasonable attorney's fees to a prevailing party.
    SECTION 2. IC 24-5-21 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 1999]:
     Chapter 21. Unsolicited Electronic Mail
    Sec. 1. This chapter applies if an unsolicited electronic mail advertisement is delivered to a person in Indiana.
    Sec. 2. This chapter does not apply to the actions of any intervening electronic mail service provider that only handles or retransmits an electronic mail advertisement.
    Sec. 3. The definitions in IC 24-5-19 apply throughout this chapter.
    Sec. 4. A person that initiates an unsolicited electronic mail advertisement shall establish a:
        (1) toll free telephone number; or
        (2) valid sender operated return electronic mail address;
where the recipient of the electronic mail advertisement may call or send electronic mail to notify the sender not to electronically mail any further electronic mail advertisements.
    Sec. 5. A person that initiates an unsolicited electronic mail advertisement shall include a statement informing the recipient of:
        (1) the toll free telephone number that the recipient may call; or
        (2) a valid return address that the recipient may electronically mail;
to notify the sender not to electronically mail the recipient any

further electronic mail advertisements. The statement must be the first text in the body of the message and be of the same size type as the majority of the text of the message. The statement may require only that the recipient indicate by telephone or electronic mail that the recipient does not want further electronic mail advertisements sent to the electronic mail address or addresses specified by the recipient.
    Sec. 6. Upon notification not to send any further unsolicited electronic mail advertisements, a person may not initiate or cause the initiation of any additional electronic mail advertisements to:
        (1) the recipient sending the notification; or
        (2) the recipients who have employer provided and employer controlled electronic mail addresses, if the employer that is the registered owner of more than one (1) electronic mail address notifies the person not to electronically mail unsolicited electronic mail advertisements to the employees who use the employer's electronic mail addresses.
    Sec. 7. (a) The subject line of each unsolicited electronic mail advertisement message must include "ADV:" as the first four (4) characters.
    (b) The subject line of each unsolicited electronic mail advertisement that contains information about personal property, real property, services, or an extension of credit that may be viewed, purchased, rented, leased, or held in possession only by an individual who is at least eighteen (18) years of age or an entity other than an individual, or both, must include "ADV:ADLT" as the first eight (8) characters.
    Sec. 8. A person that violates this chapter commits a deceptive act under IC 24-5-0.5-4 and is subject to the remedies and penalties set forth in IC 24-5-0.5.
    SECTION 3. [EFFECTIVE JULY 1, 1999] IC 24-5-20 and IC 24-5-21, both as added by this act, apply only to causes of action that accrue after June 30, 1999.