BILL NUMBER: AB 1629	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Miller

                        JANUARY 5, 1998

   An act to add Section 17538.45 to the Business and Professions
Code, relating to advertising.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1629, as introduced, Miller.  Advertising: electronic mail.
   Existing law prohibits a person conducting business in this state
from faxing unsolicited advertising material, unless certain
conditions are satisfied.
   This bill would also prohibit a person conducting business in the
state from using a computer or other electronic device to send an
unsolicited advertisement to an electronic mail address within the
state unless (1) that person has a preexisting and ongoing business
or personal relationship with the recipient, or absent that
relationship, the recipient has previously provided express consent
or permission with respect to the advertisement and (2) that person
provides certain identifying information at the beginning of the
advertisement.  It would also authorize any person with legal
standing to bring an action in a court of competent jurisdiction to
enjoin any violation of these prohibitions, or to recover civil
damages, as specified, or to seek both of those remedies.  It would
also provide that the prevailing party in any of those actions shall
be entitled to recover reasonable attorney's fees.
   Existing law provides for the regulation of advertising and
provides that any violation of those provisions is a crime.  This
bill, by creating additional prohibitions with regard to advertising,
would expand the scope of an existing crime, thereby imposing a
state-mandated local program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


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


  SECTION 1.  Section 17538.45 is added to the Business and
Professions Code, to read:
   17538.45.  (a) No person conducting business in this state shall
use any computer or other electronic device to send an unsolicited
advertisement to an electronic mail address within the state unless
each of the following requirements are satisfied:
   (1) That person has a preexisting and ongoing business or personal
relationship with the recipient, or absent that relationship, the
recipient has previously provided express consent or permission with
respect to the advertisement.
   (2) That person clearly provides, at the beginning of the
unsolicited advertisement, the date and time the message was sent,
the identity of the person sending the message, and the return
electronic mail address of that person.
   (b) (1) Notwithstanding Sections 17535 and 17536, any person who
has legal standing may bring an action in a court of competent
jurisdiction for either or both of the following purposes:
   (A) To enjoin any violation of this section.
   (B) To recover civil damages in an amount equal to the actual
monetary loss suffered by that person by reason of any violation, or
five hundred dollars ($500) for each violation, whichever amount is
greater.  However, if the court finds that a violation of this
section was willful or knowing, the court may, in its discretion,
award up to three times the amount of those civil damages.
   (2) The prevailing party in any action brought under paragraph (1)
shall be entitled to recover reasonable attorney's fees.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.