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Am. Sub. S. B. No. 8As Passed by the HouseAs Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Amstutz, Harris, Austria, Blessing, Brady, Spada, Mumper
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
A BILL
To enact section 2307.64 of the Revised Code to
regulate the transmission of electronic mail
advertisements.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2307.64 of the Revised Code be
enacted to
read as follows:
Sec. 2307.64. (A)
As used in this section: (1)
"Advertisement" has the same meaning as in section
4931.55 of the Revised Code.
(2) "Computer," "computer network," "computer program,"
"computer services," and "telecommunications device" have the same
meanings as in section 2913.01 of the Revised Code. (3) "Electronic mail" means an electronic message that is
transmitted between two or more telecommunications devices or
electronic devices capable of receiving electronic messages,
whether or not the message is converted to hard copy format after
receipt, and whether or not the message is viewed upon the
transmission or stored for later retrieval. "Electronic mail"
includes electronic messages that are transmitted through a local,
regional, or global computer network. (4) "Electronic mail advertisement" means electronic
mail
containing an advertisement. (5) "Electronic mail service provider" means any person that
is an intermediary in sending and receiving electronic mail and
that provides to users of electronic mail services the ability to
send
or receive electronic mail. "Electronic mail service
provider" includes an internet service
provider.
(6) "Internet" has the same meaning as in section 341.42 of
the Revised Code.
(7) "Originating address" means the string of characters
used to specify the source of any electronic mail message.
(8) "Person" has the same meaning as in section 1.59 of the
Revised Code, but when a person is not an individual, the person
responsible for transmitting or causing to be transmitted an
electronic mail advertisement is the particular division of the
partnership, corporation, or other business entity actually
responsible for the transmission of the electronic mail
advertisement. (9) "Pre-existing business relationship" means that there was
a business transaction between the initiator and the recipient of
a commercial electronic mail message during the five-year period
preceding the receipt of that message. A pre-existing business
relationship includes a transaction involving the free provision
of information, goods, or services requested by the recipient. A
pre-existing business
relationship does not exist after a
recipient requests to be removed
from the distribution lists of an
initiator pursuant to division
(B) of this section and a
reasonable amount of time has expired
since that request.
(10)
"Receiving address" means the string of characters used
to specify a recipient with each receiving address creating a
unique and separate recipient.
(11)
"Recipient" means a person who receives an
electronic mail advertisement at any one of the following
receiving addresses: (a) A receiving address furnished by an electronic mail
service provider that bills for furnishing and maintaining that
receiving address to a mailing address within this state; (b) A receiving address ordinarily accessed from a computer
located within this state; (c) A receiving address ordinarily accessed by a person
domiciled within this state; (d) Any other receiving address with respect to which the
obligations imposed by this section can be imposed consistent with
the United States Constitution.
(B)(1)
Except as otherwise provided in division (B)(3) of
this
section, a person that transmits or causes to be
transmitted
to a
recipient an electronic mail advertisement shall
clearly
and
conspicuously provide to the recipient, within the body of the
electronic mail advertisement, both of the following:
(a) The person's name and complete residence or
business
address and the electronic mail
address of the person
transmitting
the electronic mail advertisement;
(b) A notice that the recipient may decline to receive from
the person
transmitting or causing to be transmitted the
electronic mail advertisement any
additional
electronic mail
advertisements and a detailed
procedure
for
declining to receive
any additional electronic mail
advertisements at no cost. The
notice shall be of the same size of type as the majority of the
text of the message and shall not require that the recipient
provide any information other than the receiving address. (2) If
the recipient of an electronic mail advertisement
uses the
procedure contained in the notice described in division
(B)(1)(b) of this section to
decline to receive any additional
electronic mail advertisements, the
person
that transmitted or
caused to be transmitted the original
electronic mail
advertisement, within a reasonable period of time,
shall cease
transmitting or causing to be transmitted to the
receiving address
any additional electronic
mail advertisements. (3) A person does not violate division (B) of this section
if
the person transmits or causes to
be
transmitted to the
recipient an
electronic mail advertisement
when any of the
following apply: (a) The person has a pre-existing business or personal
relationship
with the recipient. (b) The recipient has consented or has agreed as a
condition
of service to receive the
electronic mail advertisement. (c) The recipient receives the electronic mail advertisement
because another recipient forwarded the advertisement to that
recipient via an internet web site or another recipient made a
direct referral of that recipient to receive the advertisement.
(C) No person shall use a computer, a computer network, or
the computer services of an electronic mail service provider to
transmit an electronic mail advertisement in contravention of the
authority granted by, or in violation of the policies related to
electronic mail advertisements set by, the
electronic mail service
provider if the electronic mail service provider has provided the
person notice of those policies. For the purposes of this
division, notice of those policies shall be deemed sufficient if
an electronic mail service provider maintains an easily accessible
web page containing its policies regarding electronic mail
advertisements and can demonstrate that notice was supplied via
electronic means between the sending and receiving computers.
(D)
No electronic mail service provider shall be liable for
transmitting another person's electronic mail advertisement
through its service in violation of this section, or shall be
liable for any action it voluntarily takes in good
faith to block
the
receipt or transmission through its service of
any electronic
mail
advertisement that it believes is, or will be
sent, in
violation of
this section. (E) A recipient of an electronic mail advertisement
transmitted in violation of division (B) of this section may bring
a civil action against a person who transmitted that advertisement
or caused it to be transmitted. In that action, the recipient may
recover the following:
(1) One hundred dollars for each violation, not to exceed a
total of fifty thousand dollars;
(2) Reasonable attorney's fees, court costs, and other costs
of bringing the action.
(F) An electronic mail service provider whose authority or
policy has been contravened in violation of division (C) of this
section may bring a civil action against a person who transmitted
that advertisement or caused it to be transmitted. In that
action, the electronic mail service provider may recover the
following:
(1)(a) Fifty dollars for each violation of division (C) of
this section, not to exceed fifty thousand dollars;
(b) If a violation of division (C) of this section is a
willful or knowing violation, the court may increase the amount
recoverable to an amount not to exceed five hundred thousand
dollars.
(c) If a violation of division (C) of this section is
accompanied by a violation of division (H) of this section, there
shall be no limit on the amount that may be recovered pursuant to
this section.
(2) Reasonable attorney's fees, court costs, and other costs
of bringing the action. (G) In addition to any recovery that is allowed
under
divisions (E) or (F) of this section, the recipient of
an
electronic mail
advertisement transmitted in violation of division
(B) of this
section or the electronic mail service provider of an
advertisement transmitted in violation of division (C) of this
section may apply to
the court
of common pleas of the county in
which the recipient resides or the service provider is located for
an order
enjoining the person who
transmitted or caused to be
transmitted that electronic mail
advertisement from
transmitting
or causing to be transmitted to
the
recipient any additional
electronic mail
advertisement. (H) No person shall use a computer, a
computer network, a
computer program, or the computer services of an electronic mail
service provider with the intent to forge an originating address
or other routing information, in any manner, in connection with
the
transmission of an electronic mail advertisement through or
into
the network of an electronic mail service provider or its
subscribers. Each use of a computer, a computer network, a
computer program, or the computer services of an electronic mail
service provider in violation of this division constitutes a
separate offense. A person who violates this division is guilty
of forgery under section 2913.31 of the Revised Code.
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