§ 13-65-202 — Cause of action.

(1) (1)(a) The following persons may bring a claim against an advertiser or initiator who violates Section 13-65-201:
(1)(a)(i) an electronic mail service provider;
(1)(a)(ii) a recipient of an unsolicited commercial email; or
(1)(a)(iii) a person whose brand, trademark, email address, or domain name an advertiser or initiator uses, without authorization, in the header information.
(1)(b) There is a rebuttable presumption that a commercial email that violates Section 13-65-201 is an unsolicited commercial email.
(1)(c) The burden of proving that a commercial email is not an unsolicited commercial email is on the defendant.
(2) (2)(a) A person described in Subsection (1)(a)(i) or (ii) may recover:
(2)(a)(i) actual damages; and
(2)(a)(ii) except as provided in Subsection (2)(c), liquidated damages of $1,000 for each unsolicited commercial email transmitted in violation of Section 13-65-201.
(2)(b) If an addressee of an unsolicited commercial email has more than one email address to which an advertiser or an initiator sends an unsolicited commercial email, the addressee is considered a separate recipient for each email address to which the advertiser or the initiator sends the unsolicited commercial email.
(2)(c) If a court finds that an advertiser or an initiator used due diligence to establish and implement practices and procedures to effectively prevent unsolicited commercial emails in violation of this chapter, the court shall reduce the liquidated damages to $100 for each unsolicited commercial email transmitted in violation of Section 13-65-201.
(3) A person described in Subsection (1)(a)(iii) may recover:

(3)(a) actual damages; and
(3)(b) liquidated damages in an amount equal to the lesser of:
(3)(b)(i) $1,000 for each commercial email transmitted in violation of this chapter that uses, without authorization, a person's brand, trademark, email address, or domain name in the header information; and
(3)(b)(ii) $2,000,000.
(4) The prevailing party in an action brought under this section may recover reasonable attorney fees and costs.
(5) (5)(a) Defendants in an action under this section are jointly and severally liable.
(5)(b) There is no cause of action under this section against an electronic mail service provider who is involved only in the routine conveyance of commercial email over the email service provider's computer network.

Legislative History

Enacted by Chapter 377, 2023 General Session