REPRESENTATIVES Collier, Hagan, McGregor, G. Smith, Niehaus, Schmidt, Willamowski, Peterson, Schneider, Jolivette, Coates, Flowers, Fessler, Cates, Husted, Otterman, Core, Reinhard, Evans, Hartnett, Distel, Cirelli, Wilson

To enact section 2307.64 of the Revised Code to

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regulate the transmission of electronic mail

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advertisements.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2307.64 of the Revised Code be	4
enacted to read as follows:	5

Sec. 2307.64. (A) As used in this section:

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(1)"Advertisement" has the same meaning as in section	7
4931.55 of the Revised Code.	8

(2) "Computer," "computer network," "computer program,"	9
"computer services," and "telecommunications device" have the same	10
meanings as in section 2913.01 of the Revised Code.	11

(3) "Electronic mail" means an electronic message that is	12
transmitted between two or more telecommunications devices or	13
electronic devices capable of receiving electronic messages,	14
whether or not the message is converted to hard copy format after	15
receipt, and whether or not the message is viewed upon the	16
transmission or stored for later retrieval. "Electronic mail"	17
includes electronic messages that are transmitted through a local,	18
regional, or global computer network.	19

(4) "Electronic mail advertisement" means electronic mail	20
containing an advertisement.	21

(5) "Electronic mail service provider" means any person that	22
is an intermediary in sending and receiving electronic mail and	23
that provides to users of electronic mail services the ability to	24
send or receive electronic mail. "Electronic mail service	25
provider" includes an internet service provider.	26

(6) "Internet" has the same meaning as in section 341.42 of	27
the Revised Code.	28

(7) "Originating address" means the string of characters	29
used to specify the source of any electronic mail message.	30

(8) "Person" has the same meaning as in section 1.59 of the	31
Revised Code, but when a person is not an individual, the person	32
responsible for transmitting or causing to be transmitted an	33
electronic mail advertisement is the particular division of the	34
partnership, corporation, or other business entity actually	35
responsible for the transmission of the electronic mail	36
advertisement.	37

(9) "Pre-existing business relationship" means that there was	38
a business transaction between the initiator and the recipient of	39
a commercial electronic mail message during the five-year period	40
preceding the receipt of that message. A pre-existing business	41
relationship includes a transaction involving the free provision	42
of information, goods, or services requested by the recipient. A	43
pre-existing business relationship does not exist after a	44
recipient requests to be removed from the distribution lists of an	45
initiator pursuant to division (B) of this section and a	46
reasonable amount of time has expired since that request.	47

(10) "Receiving address" means the string of characters used	48
to specify a recipient with each receiving address creating a	49
unique and separate recipient.	50

(11) "Recipient" means a person who receives an	51
electronic mail advertisement at any one of the following	52
receiving addresses:	53

(a) A receiving address furnished by an electronic mail	54
service provider that bills for furnishing and maintaining that	55
receiving address to a mailing address within this state;	56

(b) A receiving address ordinarily accessed from a computer	57
located within this state;	58

(c) A receiving address ordinarily accessed by a person	59
domiciled within this state;	60

(d) Any other receiving address with respect to which the	61
obligations imposed by this section can be imposed consistent with	62
the United States Constitution.	63

(B)(1) Except as otherwise provided in division (B)(3) of	64
this section, a person that transmits or causes to be transmitted	65
to a recipient an electronic mail advertisement shall clearly and	66
conspicuously provide to the recipient, within the body of the	67
electronic mail advertisement, both of the following:	68

(a) The person's name and complete residence or business	69
address and the electronic mail address of the person transmitting	70
the electronic mail advertisement;	71

(b) A notice that the recipient may decline to receive from	72
the person transmitting or causing to be transmitted the	73
electronic mail advertisement any additional electronic mail	74
advertisements and a detailed procedure for declining to receive	75
any additional electronic mail advertisements at no cost. The	76
notice shall be of the same size of type as the majority of the	77
text of the message and shall not require that the recipient	78
provide any information other than the receiving address.	79

(2) If the recipient of an electronic mail advertisement	80
uses the procedure contained in the notice described in division	81
(B)(1)(b) of this section to decline to receive any additional	82
electronic mail advertisements, the person that transmitted or	83
caused to be transmitted the original electronic mail	84
advertisement, within a reasonable period of time, shall cease	85
transmitting or causing to be transmitted to the receiving address	86
any additional electronic mail advertisements.	87

(3) A person does not violate division (B) of this section	88
if the person transmits or causes to be transmitted to the	89
recipient an electronic mail advertisement when any of the	90
following apply:	91

(a) The person has a pre-existing business or personal	92
relationship with the recipient.	93

(b) The recipient has consented or has agreed as a condition	94
of service to receive the electronic mail advertisement.	95

(c) The recipient receives the electronic mail advertisement	96
because another recipient forwarded the advertisement to that	97
recipient via an internet web site or another recipient made a	98
direct referral of that recipient to receive the advertisement.	99

(C) No person shall use a computer, a computer network, or	100
the computer services of an electronic mail service provider to	101
transmit an electronic mail advertisement in contravention of the	102
authority granted by, or in violation of the policies related to	103
electronic mail advertisements set by, the electronic mail service	104
provider if the electronic mail service provider has provided the	105
person notice of those policies. For the purposes of this	106
division, notice of those policies shall be deemed sufficient if	107
an electronic mail service provider maintains an easily accessible	108
web page containing its policies regarding electronic mail	109
advertisements and can demonstrate that notice was supplied via	110
electronic means between the sending and receiving computers.	111

(D) No electronic mail service provider shall be liable for	112
transmitting another person's electronic mail advertisement	113
through its service in violation of this section, or shall be	114
liable for any action it voluntarily takes in good faith to block	115
the receipt or transmission through its service of any electronic	116
mail advertisement that it believes is, or will be sent, in	117
violation of this section.	118

(E) A recipient of an electronic mail advertisement	119
transmitted in violation of division (B) of this section may bring	120
a civil action against a person who transmitted that advertisement	121
or caused it to be transmitted. In that action, the recipient may	122
recover the following:	123

(1) One hundred dollars for each violation, not to exceed a	124
total of fifty thousand dollars;	125

(2) Reasonable attorney's fees, court costs, and other costs	126
of bringing the action.	127

(F) An electronic mail service provider whose authority or	128
policy has been contravened in violation of division (C) of this	129
section may bring a civil action against a person who transmitted	130
that advertisement or caused it to be transmitted. In that	131
action, the electronic mail service provider may recover the	132
following:	133

(1)(a) Fifty dollars for each violation of division (C) of	134
this section, not to exceed fifty thousand dollars;	135

(b) If a violation of division (C) of this section is a	136
willful or knowing violation, the court may increase the amount	137
recoverable to an amount not to exceed five hundred thousand	138
dollars.	139

(c) If a violation of division (C) of this section is	140
accompanied by a violation of division (H) of this section, there	141
shall be no limit on the amount that may be recovered pursuant to	142
this section.	143

(2) Reasonable attorney's fees, court costs, and other costs	144
of bringing the action.	145

(G) In addition to any recovery that is allowed under	146
divisions (E) or (F) of this section, the recipient of an	147
electronic mail advertisement transmitted in violation of division	148
(B) of this section or the electronic mail service provider of an	149
advertisement transmitted in violation of division (C) of this	150
section may apply to the court of common pleas of the county in	151
which the recipient resides or the service provider is located for	152
an order enjoining the person who transmitted or caused to be	153
transmitted that electronic mail advertisement from transmitting	154
or causing to be transmitted to the recipient any additional	155
electronic mail advertisement.	156

(H) No person shall use a computer, a computer network, a	157
computer program, or the computer services of an electronic mail	158
service provider with the intent to forge an originating address	159
or other routing information, in any manner, in connection with	160
the transmission of an electronic mail advertisement through or	161
into the network of an electronic mail service provider or its	162
subscribers. Each use of a computer, a computer network, a	163
computer program, or the computer services of an electronic mail	164
service provider in violation of this division constitutes a	165
separate offense. A person who violates this division is guilty	166
of forgery under section 2913.31 of the Revised Code.	167