By Shapleigh S.B. No. 1218
77R343 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to liability for prohibited initiation or delivery of
1-3 unsolicited electronic mail advertisements.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 4, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 94 to read as follows:
1-7 CHAPTER 94. LIABILITY FOR PROHIBITED INITIATION OR DELIVERY OF
1-8 UNSOLICITED ELECTRONIC MAIL ADVERTISEMENTS
1-9 Sec. 94.001. DEFINITIONS. In this chapter:
1-10 (1) "Initiation" of an unsolicited electronic mail
1-11 advertisement does not include an action by a service provider that
1-12 receives, processes, or retransmits an electronic message initiated
1-13 by another person.
1-14 (2) "Registered user" means a person that maintains an
1-15 electronic mail address with a service provider.
1-16 (3) "Service provider" means a person that:
1-17 (A) is qualified to do business in this state;
1-18 (B) provides a registered user the ability to
1-19 send or receive electronic mail through equipment located in this
1-20 state; and
1-21 (C) is an intermediary in sending or receiving
1-22 electronic mail.
1-23 (4) "Unsolicited electronic mail advertisement" means
1-24 an electronic mail message the principal purpose of which is to
2-1 promote, directly or indirectly, the sale or other distribution of
2-2 goods or services to the recipient of the message and that:
2-3 (A) is addressed to a recipient with which the
2-4 initiator of the message does not have an existing business or
2-5 personal relationship; and
2-6 (B) is not sent at the request of or with the
2-7 express consent of the recipient.
2-8 Sec. 94.002. CERTAIN RIGHTS NOT LIMITED OR RESTRICTED. This
2-9 chapter does not limit or restrict the right of a service provider
2-10 to:
2-11 (1) permit or restrict access to or use of its system;
2-12 or
2-13 (2) exercise its editorial function in relation to
2-14 electronic mail.
2-15 Sec. 94.003. POLICY RELATING TO UNSOLICITED ELECTRONIC MAIL
2-16 ADVERTISEMENTS. (a) A service provider may not establish the
2-17 liability of a person as provided by Section 94.006 unless the
2-18 service provider adopts a policy prohibiting or restricting the
2-19 use of its equipment for the initiation or delivery of an
2-20 unsolicited electronic mail advertisement.
2-21 (b) This chapter does not require a service provider to
2-22 adopt a policy described by Subsection (a).
2-23 Sec. 94.004. PROHIBITION RELATING TO INITIATION. A
2-24 registered user may not use or cause to be used the service
2-25 provider's equipment located in this state in violation of the
2-26 service provider's policy prohibiting or restricting the use of its
2-27 service or equipment for the initiation of unsolicited electronic
3-1 mail advertisements.
3-2 Sec. 94.005. PROHIBITION RELATING TO DELIVERY. A person may
3-3 not use or cause to be used, by initiating an unsolicited
3-4 electronic mail advertisement, a service provider's equipment
3-5 located in this state in violation of the service provider's policy
3-6 prohibiting or restricting the use of its equipment to deliver an
3-7 unsolicited electronic mail advertisement to a registered user.
3-8 Sec. 94.006. LIABILITY; DAMAGES. (a) A person that
3-9 violates a service provider's policy on unsolicited electronic mail
3-10 advertisements in a manner described by Section 94.004 or 94.005 is
3-11 liable to the service provider for damages in the amount described
3-12 by Subsection (b) if the person, before the violation, had actual
3-13 notice:
3-14 (1) of the service provider's policy; and
3-15 (2) that the person's unsolicited electronic mail
3-16 advertisements would use or cause to be used the service provider's
3-17 equipment located in this state.
3-18 (b) A person that is liable to a service provider under
3-19 Subsection (a) is liable for the greater of:
3-20 (1) the actual monetary loss by the service provider
3-21 arising from the violation; or
3-22 (2) $50 for each electronic mail message initiated or
3-23 delivered that resulted in the violation, not to exceed $25,000 for
3-24 each day the violation occurred.
3-25 Sec. 94.007. ATTORNEY'S FEES. A court may award reasonable
3-26 attorney's fees to a party that prevails in an action under this
3-27 chapter.
4-1 SECTION 2. This Act takes effect September 1, 2001, and
4-2 applies only to a violation of a service provider's policy as
4-3 described by Section 94.004 or 94.005, Civil Practice and Remedies
4-4 Code, as added by this Act, that occurs on or after that date,
4-5 without regard to whether:
4-6 (1) the policy that is violated is adopted before, on,
4-7 or after that date; or
4-8 (2) actual notice, as described by Section 94.006(a),
4-9 Civil Practice and Remedies Code, as added by this Act, occurred
4-10 before, on, or after that date.