BILL NUMBER: SB 1457	CHAPTERED
	BILL TEXT

	CHAPTER  571
	FILED WITH SECRETARY OF STATE  SEPTEMBER 17, 2004
	APPROVED BY GOVERNOR  SEPTEMBER 17, 2004
	PASSED THE SENATE  AUGUST 23, 2004
	PASSED THE ASSEMBLY  AUGUST 18, 2004
	AMENDED IN ASSEMBLY  AUGUST 5, 2004
	AMENDED IN ASSEMBLY  JUNE 17, 2004
	AMENDED IN ASSEMBLY  JUNE 9, 2004

INTRODUCED BY   Senator Murray

                        FEBRUARY 19, 2004

   An act to amend Section 17529.5 of the Business and Professions
Code, relating to business.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1457, Murray.  Commercial e-mail advertisements.
   Existing state law prohibits a person or entity from advertising
in a commercial e-mail advertisement that is sent either from
California or to a California e-mail address if the e-mail contains
or is accompanied by a 3rd-party's domain name without permission,
contains or is accompanied by falsified, misrepresented, obscured, or
forged header information, or has a misleading subject line.
Existing state law authorizes the recipient of an unsolicited
commercial e-mail advertisement transmitted in violation of these
prohibitions, an e-mail service provider, or the Attorney General to
bring an action to recover actual damages for a violation of this
prohibition, and authorizes a court to award reasonable attorney's
fees and costs if they are a prevailing plaintiff.
   This bill would delete the prohibition against obscured header
information. The bill would authorize the Attorney General, an e-mail
service provider, or the recipient of an unsolicited commercial
e-mail advertisement transmitted in violation of these provisions to
bring an action to recover liquidated damages of $1,000 per
unsolicited commercial e-mail advertisement transmitted in violation
of the provisions, up to $1,000,000 per incident, subject to
reduction by the court.  The bill would prohibit the bringing of
multiple actions under different damages provisions relating to
e-mail advertisements for the same violation.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 17529.5 of the Business and Professions Code is
amended to read:
   17529.5.  (a) It is unlawful for any person or entity to advertise
in a commercial e-mail advertisement either sent from California or
sent to a California electronic mail address under any of the
following circumstances:
   (1) The e-mail advertisement contains or is accompanied by a
third-party's domain name without the permission of the third party.

   (2) The e-mail advertisement contains or is accompanied by
falsified, misrepresented, or forged header information.  This
paragraph does not apply to truthful information used by a third
party who has been lawfully authorized by the advertiser to use that
information.
   (3) The e-mail advertisement has a subject line that a person
knows would be likely to mislead a recipient, acting reasonably under
the circumstances, about a material fact regarding the contents or
subject matter of the message.
   (b) (1) (A) In addition to any other remedies provided by any
other provision of law, the following may bring an action against a
person or entity that violates any provision of this section:
   (i) The Attorney General.
   (ii) An electronic mail service provider.
   (iii) A recipient of an unsolicited commercial e-mail
advertisement, as defined in Section 17529.1.
   (B) A person or entity bringing an action pursuant to subparagraph
(A) may recover either or both of the following:
   (i) Actual damages.
   (ii) Liquidated damages of one thousand dollars ($1,000) for each
unsolicited commercial e-mail advertisement transmitted in violation
of this section, up to one million dollars ($1,000,000) per incident.

   (C) The recipient, an electronic mail service provider, or the
Attorney General, if the prevailing plaintiff, may also recover
reasonable attorney's fees and costs.
   (D) However, there shall not be a cause of action under this
section against an electronic mail service provider that is only
involved in the routine transmission of the e-mail advertisement over
its computer network.
   (2) If the court finds that the defendant established and
implemented, with due care, practices and procedures reasonably
designed to effectively prevent unsolicited commercial e-mail
advertisements that are in violation of this section, the court shall
reduce the liquidated damages recoverable under paragraph (1) to a
maximum of one hundred dollars ($100) for each unsolicited commercial
e-mail advertisement, or a maximum of one hundred thousand dollars
($100,000) per incident.
   (3) (A) A person who has brought an action against a party under
this section shall not bring an action against that party under
Section 17529.8 or 17538.45 for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1.
   (B) A person who has brought an action against a party under
Section 17529.8 or 17538.45 shall not bring an action against that
party under this section for the same commercial e-mail
advertisement, as defined in subdivision (c) of Section 17529.1.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.