REPORT TITLE: 
Unsolicited E-mail Ads


DESCRIPTION:
Regulates "spamming," the transmission of unsolicited e-mail and
fax advertising, by defining scope of regulated transmissions,
requiring advertisers to provide a phone number or electronic
address at which recipients may notify advertisers to cease
further transmissions, requiring advertisers to add initial,
identifying letters to e-mail advertising messages and
advertising with adult content, and authorizes electronic
service providers to establish a policy restricting unsolicited
e-mail transmissions and bring a civil action for actual or
liquidated damages caused by knowing violation of the policy.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2628
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO ADVERTISING.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to title 26 to be appropriately designated and to
 
 3 read as follows.
 
 4                           "CHAPTER    
 
 5                 INTERNET AND FAX ADVERTISING ACT
 
 6      § -1  Definitions.  As used in this chapter:
 
 7      "E-mail" means an electronically mailed document or
 
 8 documents, or transmission of an electronic document or
 
 9 documents.
 
10      "Electronic mail service provider" means any business or
 
11 organization qualified to do business in the state that is an
 
12 intermediary in sending or receiving electronic mail and provides
 
13 individuals, corporations, or other entities the ability to send
 
14 or receive electronic mail through equipment located in this
 
15 state.
 
16      "Fax" means facsimile or a facsimile transmission.
 
17      "Goods" means tangible chattels, including certificates or
 
18 coupons exchangeable for those goods, and including goods which,
 
19 at the time of the sale or subsequently, are so affixed to real
 

 
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 1 property as to become a part of that real property, whether or
 
 2 not severable therefrom.
 
 3      "Internet" means the global information system that is
 
 4 logically linked together by a globally unique address space
 
 5 based on the internet protocol (IP), or its subsequent
 
 6 extensions, and that is able to support communications using the
 
 7 transmission control protocol/internet protocol (TCP/IP) suite,
 
 8 or its subsequent extensions, or other IP-compatible protocols,
 
 9 and that provides, uses, or makes accessible, either publicly or
 
10 privately, high level services layered on the communications and
 
11 related infrastructure described in this paragraph.
 
12      "Registered user" means any individual, corporation, or
 
13 other entity that maintains an electronic mail address with an
 
14 electronic mail service provider.
 
15      "Unsolicited advertising" means a document or any other
 
16 material, the principal purpose of which is to promote, directly
 
17 or indirectly, the lease, sale, rental, gift offer, or other
 
18 disposition of any realty, goods, services, or extension of
 
19 credit that meets both of the following requirements:
 
20      (1)  The material is addressed to a recipient with whom the
 
21           initiator does not have any existing business or
 
22           personal relationship; and
 

 
 
 
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 1      (2)  The material is not sent at the request of, or with the
 
 2           express consent of, the recipient.
 
 3      § -2  Unsolicited e-mail and fax advertising requirements.
 
 4 (a)  No person or entity conducting business in this state shall
 
 5 transmit or cause to be transmitted through fax or e-mail,
 
 6 unsolicited advertising material unless:
 
 7      (1)  In the case of a fax, that person or entity establishes
 
 8           a toll-free telephone number that a recipient of the
 
 9           unsolicited advertising may call to notify the sender
 
10           not to fax the recipient any further unsolicited
 
11           advertising material, and complies with requirements
 
12           under subsection (b); or
 
13      (2)  In the case of e-mail:
 
14           (A)  That person or entity establishes a toll-free
 
15                telephone number or valid sender operated return
 
16                e-mail address that the recipient of the
 
17                unsolicited advertising material may call or e-
 
18                mail to notify the sender not to e-mail any
 
19                further unsolicited advertising material, and
 
20                complies with requirements under subsection (b);
 
21                and
 
22           (B)  The subject line of each and every unsolicited
 
23                advertising message shall include "ADV:" as the
 

 
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 1                first four characters; provided that if the
 
 2                message contains information that consists of
 
 3                unsolicited advertising material that may only be
 
 4                viewed, purchased, rented, leased, or held in
 
 5                possession by an individual eighteen years of age
 
 6                and older, the subject line of each and every
 
 7                message shall include "ADV:ADLT" as the first
 
 8                eight characters.
 
 9      (b)  Unsolicited faxed or e-mailed documents subject to this
 
10 section shall include a statement informing the recipient of the
 
11 sender's toll-free telephone number or valid return address, and
 
12 that the recipient may write or e-mail, as the case may be, to
 
13 notify the sender not to fax or e-mail any further unsolicited
 
14 documents to the fax number or numbers or e-mail address or
 
15 addresses, specified by the recipient.  The statement shall:
 
16      (1)  In the case of faxed material, be in at least nine-
 
17           point type; or
 
18      (2)  In the case of e-mail, be the first text in the body of
 
19           the message and of the same size as the majority of the
 
20           text of the message.
 
21      (c)  Upon notification by a recipient of a request not to
 
22 receive any further unsolicited faxed or e-mailed documents, no
 
23 person or entity conducting business in this state shall fax or
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 cause to be faxed or e-mail or cause to be e-mailed any
 
 2 unsolicited documents to that recipient's e-mail address or fax
 
 3 number.  For purposes of this subsection, a recipient's e-mail
 
 4 address or fax number includes those of an employer who is the
 
 5 registered owner of more than one e-mail address or maintains
 
 6 more than one fax number.  An employer may notify the person or
 
 7 entity conducting business in this state not to fax or e-mail any
 
 8 further unsolicited advertising materials on behalf of recipients
 
 9 at employer-provided and employer-controlled fax numbers and e-
 
10 mail addresses.
 
11      (d)  Requirements under this section shall apply to the
 
12 initiator or initial sender of an e-mail or fax advertisement and
 
13 shall not apply to an intervening telecommunications utility or
 
14 internet service provider to the extent that they merely handle,
 
15 carry, or retransmit unsolicited advertising material subject to
 
16 this section.  Requirements under this section shall apply when
 
17 the unsolicited advertising material is transmitted to a
 
18 recipient located in the state via an electronic mail service
 
19 provider's service or equipment located in this state.
 
20      § -3  Electronic mail service provider policy.(a)  No
 
21 registered user of an electronic mail service provider shall use
 
22 or cause to be used the electronic mail service provider's in-
 
23 state equipment in violation of the electronic mail service
 

 
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 1 provider's policy prohibiting or restricting the use of its
 
 2 service or equipment for the initiation of unsolicited electronic
 
 3 mail advertisements.
 
 4      (b)  No individual, corporation, or other entity shall use
 
 5 or cause to be used, by initiating an unsolicited electronic mail
 
 6 advertisement, an electronic mail service provider's equipment
 
 7 located in this state in violation of that electronic mail
 
 8 service provider's policy prohibiting or restricting the use of
 
 9 its equipment to deliver unsolicited electronic mail
 
10 advertisements to its registered users.
 
11      (c)  An electronic mail service provider shall not be
 
12 required to create a policy prohibiting or restricting the use of
 
13 its equipment for the initiation or delivery of unsolicited
 
14 electronic mail advertisements.
 
15      (d) Nothing in this section shall be construed to limit or
 
16 restrict the rights of an electronic mail service provider under
 
17 section 230(c) (1) of title 47 of the United States Code, or any
 
18 decision of an electronic mail service provider to permit or to
 
19 restrict access to, or use of its system, or any exercise of its
 
20 editorial function.
 
21      § -4  Electronic mail service provider civil action.(a)
 
22 In addition to any other action available under law, any
 
23 electronic mail service provider whose policy on unsolicited
 

 
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 1 electronic mail advertisements is violated as provided in this
 
 2 section, may bring a civil action to recover the actual monetary
 
 3 loss suffered by that provider by reason of that violation, or
 
 4 liquidated damages of $50 for each electronic mail message
 
 5 initiated or delivered in violation of this section, up to a
 
 6 maximum of $25,000 per day, whichever amount is greater.
 
 7      (b) In any action brought pursuant to subsection (a), the
 
 8 court may award reasonable attorney's fees to a prevailing party.
 
 9      (c) In any action brought pursuant to subsection (a), the
 
10 electronic mail service provider shall be required to establish
 
11 as an element of its cause of action that prior to the alleged
 
12 violation, the defendant had actual notice: 
 
13      (1)  Of the electronic mail service provider's policy on
 
14           unsolicited electronic mail advertising; and
 
15      (2)  That the defendant's unsolicited electronic mail
 
16           advertisements would use or cause to be used the
 
17           electronic mail service provider's equipment located in
 
18           the state.
 
19      § -5  Federal regulation of e-mail or fax advertising.
 
20 This chapter, or any part of this chapter, shall become
 
21 inoperative on and after the date that federal law is enacted
 
22 that prohibits or otherwise regulates the transmission of
 
23 unsolicited advertising by e-mail or fax."
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      SECTION 2.  If any provision of this Act, or the application
 
 2 thereof to any person or circumstance is held invalid, the
 
 3 invalidity does not affect other provisions or applications of
 
 4 the Act which can be given effect without the invalid provision
 
 5 or application, and to this end the provisions of this Act are
 
 6 severable.
 
 7      SECTION 3.  This Act shall take effect upon its approval.
 
 8 
 
 9                       INTRODUCED BY:  ___________________________