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Thelen Reid Brown Raysman & Steiner LLP
On
September 28, California enacted two new bills which target
the growth of unsolicited junk e-mail, known as "spam,"
making it only the third state to attempt to address this
growing annoyance. Assembly Bill 1676, introduced
by Debra Bowen, expands the existing law, which prohibits
the faxing of unsolicited advertising material unless certain
conditions are complied with, to cover certain unsolicited
e-mail. Assembly Bill 1629, introduced by Gary
Miller, gives electronic mail service providers the ability
to bring civil actions against bulk e-mailers who fail to
comply with published policies of the service providers.
Both laws will take effect on January 1, 1999, and violations
of each will constitute a violation of California's broad
unfair competition statute, the Business and Professions
Code §17200.
In different ways, each bill may provide ammunition to employers,
Internet/e-mail service providers, and individual Internet
users -- those arguably most affected by bulk e-mail.
And, each bill has already raised the concern of free speech
advocates. Regardless of whether you send or receive
bulk e-mail, understanding these laws will become increasingly
important in the very near future.
Bowen's bill imposes the first mandatory labeling of
Internet content and may give employers relief from spamming.
AB 1676, which amends Business and Professions Code §17538.4,
will require any person or entity conducting business in
California, which sends an unsolicited e-mail advertising
goods or services, to have and list in the e-mail, a toll-free
telephone number or valid sender operated return e-mail
address, that the recipient is informed it can use to notify
the sender that the recipient should be removed from the
sender's list. This information must be in the first
line of the body of the e-mail. It is illegal to continue
to e-mail any unsolicited documents to a person or entity
which has requested removal from the sender's list.
Further, every message covered by the law must in the heading
contain "ADV:" or "ADV:ADLT" (if the
goods or services may only be rented or sold to individuals
18 and older).
The law applies when the unsolicited documents are delivered
to a California resident via an electronic mail service
provider's service or equipment located in California, or
when the entity conducting business in California e-mails
unsolicited advertising materials. An "unsolicited
e-mail" means any document consisting of advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension
of credit that are (1) addressed to a recipient with whom
there is no pre-existing business relationship and (2) the
recipient has not previously requested the documents.
One provision is of particular importance to employers.
It allows an employer, where that employer owns multiple
e-mail addresses, to notify the sender of unsolicited e-mail
advertising material on behalf of all of the employees who
use "employer-provided" and "employer-controlled"
e-mail addresses. These two terms are left undefined
by the statute, but it may be fair to assume they will be
interpreted broadly to effectuate the purpose of the statute.
Any violator is subject to a civil penalty not to exceed
$2,500 for each violation, which may be sought in an action
brought by state Attorney General or any district attorney,
county counsel, or city attorney. However, a violation
of the law would also constitute a violation of §17200,
which specifically includes any violations of §17500
et seq. This means private individuals could potentially
sue violators as individuals or private attorney generals
and utilize remedies such as injunctive relief and restitution,
as well as attorney fees under the California Civil Code.
Of course, all of this presumes the recipient is able to
identify and locate the sender, or will bother to take the
time.
Miller's bill allows an e-mail service provider to bring
a civil action and recover statutory damages for violations
of published e-mail usage guidelines. Miller's
bill, codified in Business and Professions Code §17538.45,
unlike Bowen's, singles out e-mail service providers by
giving them a private civil cause of action, in addition
to a cause of action under §17200. Registered users
of an e-mail service provider may not use the service provider's
equipment or service to initiate an unsolicited e-mail advertisement
in violation of that provider's policy which is made available
upon request at no charge. Further, no individual
or entity may use an e-mail service provider's services
or equipment by initiating an unsolicited e-mail advertisement
in violation of that provider's published policy limiting
or prohibiting the sending of such advertisements to its
registered users. The law applies only to those electronic
mail providers qualified to do business in California.
An "unsolicited electronic mail advertisement"
means any electronic mail message, the principal purpose
of which is to promote the sale or distribution of goods
or services which is addressed to a recipient with whom
the sender does not have an existing business or personal
relationship and which is not sent at the recipient's request.
Note that the Bowen bill has no such requirement that the
"principal purpose" be to promote the sale of
goods or services, and its scope may therefore be broader.
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For more information about the issues covered in this report, please contact Karl D. Belgum in our San Francisco office at 415-369-7310 or at kbelgum@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©1998 Thelen Reid Brown Raysman & Steiner LLP
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