CHAPTER 226
(HB 1285)
Commercial electronic mail regulated.
ENTITLED, An Act to
restrict unsolicited commercial electronic mail advertisements.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
Terms used in this Act mean:
(1) "Advertiser," a person or entity that advertises through the use of commercial e-mail
advertisements;
(2) "Commercial e-mail advertisement," any electronic mail message initiated for the
purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition
of any property, goods, services, or extension of credit;
(3) "Direct consent," the recipient has expressly consented to receive e-mail advertisements
from the advertiser, either in response to a clear and conspicuous request for the consent
or at the recipient's own initiative;
(4) "Domain name," any alphanumeric designation that is registered with or assigned by any
domain name registrar as part of an electronic address on the internet;
(5) "Electronic mail" or "e-mail," an electronic message that is sent to an e-mail address and
transmitted between two or more telecommunications devices, computers, or electronic
devices capable of receiving electronic messages, whether or not the message is
converted to hard copy format after receipt, viewed upon transmission, or stored for
later retrieval. Electronic mail, or e-mail, includes electronic messages that are
transmitted through a local, regional, or global computer network;
(6) "Electronic mail address" or "e-mail address," a destination, commonly expressed as a
string of characters, to which electronic mail can be sent or delivered. An electronic
mail address, or e-mail address, consists of a user name or mailbox and a reference to
an internet domain;
(7) "Electronic mail service provider," any person, including an internet service provider,
that is an intermediary in sending or receiving electronic mail or that provides to end
users of the electronic mail service the ability to send or receive electronic mail;
(8) "Initiate," to transmit or cause to be transmitted a commercial e-mail advertisement or
assist in the transmission of a commercial e-mail advertisement by providing electronic
mail addresses where the advertisement may be sent, but does not include the routine
transmission of the advertisement through the network or system of a
telecommunications utility or an electronic mail service provider through its network
or system;
(9) "Incident," a single transmission or delivery to a single recipient or to multiple
recipients of an unsolicited commercial e-mail advertisement containing substantially
similar content;
(10) "Internet," the international computer network of both federal and nonfederal
interoperable packet switched data networks, including the graphical subnetwork called
the world wide web;
(11) "Preexisting or current business relationship," as used in connection with the sending
of a commercial e-mail advertisement, means that the recipient has made an inquiry and
has provided his or her e-mail address, or has made an application, purchase, or
transaction, with or without consideration, regarding products or services offered by the
advertiser.
Commercial e-mail advertisements sent pursuant to the exemption that is provided for
a preexisting or current business relationship shall provide the recipient of the
commercial e-mail advertisement with the ability to opt-out from receiving further
commercial e-mail advertisements by calling a toll-free telephone number or by sending
an unsubscribe e-mail to the advertiser offering the products or services in the
commercial e-mail advertisement. This opt-out provision does not apply to recipients
who are receiving free e-mail service with regard to commercial e-mail advertisements
sent by the provider of the e-mail service;
(12) "Recipient," the addressee of an unsolicited commercial e-mail advertisement. If an
addressee of an unsolicited commercial e-mail advertisement has one or more e-mail
addresses to which an unsolicited commercial e-mail advertisement is sent, the
addressee is deemed to be a separate recipient for each e-mail address to which the e-
mail advertisement is sent;
(13) "Routine transmission," the transmission, routing, relaying, handling, or storing of an
electronic mail message through an automatic technical process. Routine transmission
does not include the sending, or the knowing participation in the sending, of unsolicited
commercial e-mail advertisements;
(14) "South Dakota electronic mail address" or "South Dakota e-mail address," any of the
following:
(a) An e-mail address furnished by an electronic mail service provider that sends
bills for furnishing and maintaining that e-mail address to a mailing address in
this state;
(b) An e-mail address ordinarily accessed from a computer located in this state; or
(c) An e-mail address furnished to a resident of this state;
(15) "Unsolicited commercial e-mail advertisement," a commercial e-mail advertisement
sent to a recipient who meets both of the following criteria:
(a) The recipient has not provided direct consent to receive advertisements from the
advertiser; or
(b) The recipient does not have a preexisting or current business relationship with
the advertiser promoting the lease, sale, rental, gift offer, or other disposition of
any property, goods, services, or extension of credit.
Section
2.
No person or entity may do any of the following unless the subject line complies
with the requirements set forth in subdivision 37-24-6(13):
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South
Dakota or advertise in an unsolicited commercial e-mail advertisement sent from South
Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South
Dakota electronic mail address, or advertise in an unsolicited commercial e-mail
advertisement sent to a South Dakota electronic mail address.
Section
3.
Nothing in this Act may be construed to limit or restrict the adoption,
implementation, or enforcement by a provider of internet access service of a policy of declining
to transmit, receive, route, relay, handle, or store certain types of electronic mail messages.
Section
4.
No person may collect electronic mail addresses posted on the internet if the purpose
of the collection is for the electronic mail addresses to be used to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South
Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South
Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South
Dakota electronic mail address, or advertise in an unsolicited commercial e-mail
advertisement sent to South Dakota electronic mail address.
Section
5.
No person may use an electronic mail address obtained by using automated means
based on a combination of names, letters, or numbers to do either of the following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South
Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South
Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South
Dakota electronic mail address, or advertise in an unsolicited commercial e-mail
advertisement sent to a South Dakota electronic mail address.
Section
6.
No person may use scripts or other automated means to register for multiple
electronic mail accounts from which to do, or to enable another person to do, either of the
following:
(1) Initiate or advertise in an unsolicited commercial e-mail advertisement from South
Dakota, or advertise in an unsolicited commercial e-mail advertisement sent from South
Dakota; or
(2) Initiate or advertise in an unsolicited commercial e-mail advertisement to a South
Dakota electronic mail address, or advertise in an unsolicited commercial e-mail
advertisement sent to a South Dakota electronic mail address.
Section
7.
No person may advertise in a commercial e-mail advertisement either sent from
South Dakota or sent to a South Dakota 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;
(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.
Section
8.
The recipient of an unsolicited commercial e-mail advertisement, an electronic mail
service provider, or the attorney general may bring an action against any person that violates
section 2, 4, 5, 6, or 7 of this Act and may recover either or both of the following:
(1) Actual damages; or
(2) Liquidated damages of one thousand dollars for each unsolicited commercial e-mail
advertisement transmitted in violation of such section, up to one million dollars per
incident.
The recipient, an electronic mail service provider, or the attorney general, if the prevailing
plaintiff, may also recover reasonable attorney's fees and costs.
However, there may be no 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.
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 Act, the court shall reduce the liquidated damages
recoverable under this section to a maximum of one hundred dollars for each unsolicited
commercial e-mail advertisement, or a maximum of one hundred thousand dollars per incident.
Section
9.
That
§
37-24-36
be repealed.
Section
10.
That
§
37-24-37
be repealed.
Section
11.
That
§
37-24-38
be repealed.
Section
12.
That
§
37-24-39
be repealed.
Section
13.
That
§
37-24-40
be repealed.
Signed February 28, 2007