§ 17529.5. — 17529.5. (Amended by Stats. 2005, Ch. 247, Sec. 1.)

California § 17529.5.

• Jurisdiction: California
• Code BPC: Business and Professions Code - BPC
• Div. 7.: DIVISION 7. GENERAL BUSINESS REGULATIONS
• Part 3.: PART 3. REPRESENTATIONS TO THE PUBLIC
• Ch. 1.: CHAPTER 1. Advertising
• Art. 1.8.: ARTICLE 1.8. Restrictions On Unsolicited Commercial E-mail Advertisers

Text

(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.
(c)
A violation of this section is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000), imprisonment in a county jail for not more than six months, or both that fine and imprisonment.

Legislative History

Amended by Stats. 2005, Ch. 247, Sec. 1. Effective January 1, 2006.