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.