Cal Bus & Prof Code § 17538.45
§ 17538.45. Use of electronic mail service provider's equipment in violation of provider's policy on
unsolicited electronic mail advertisements; Action by service provider; Actual monetary loss or liquidated
damages; Attorney's fees; Election of remedies
(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, or 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 such a 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 subject
to 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.
