FIRST REGULAR SESSION
[PERFECTED]
HOUSE SUBSTITUTE FOR
HOUSE COMMITTEE SUBSTITUTE FOR
92ND GENERAL ASSEMBLY
Taken up for Perfection March 11, 2003.
House Substitute for House Committee Substitute for House Bill No. 228 ordered Perfected and printed, as amended.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To amend chapter 407, RSMo, by adding thereto five new sections relating to unsolicited commercial electronic mail, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 407, RSMo, is amended by adding thereto five new sections, to be known as sections 407.1135, 407.1138, 407.1141, 407.1144, and 407.1147, to read as follows:
407.1135. As used in sections 407.1135 to 407.1147, the following words and phrases mean:
(1) "Commercial electronic mail", an electronic mail message sent for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services;
(2) "Electronic mail address", a destination, commonly expressed as a sequence of characters, to which electronic mail may be sent or delivered;
(3) "Initiate the transmission", the action by the original sender of an unsolicited electronic mail solicitation that results in receipt by a subscriber of that solicitation, including electronic mail received by a subscriber which was sent by a third party at the request of or direction of the original sender;
(4) "Ongoing business relationship", shall include:
(a) Electronic mail in response to an inquiry where the subscriber has requested further information from the business and has provided an e-mail address;
(b) Electronic mail sent on the basis of an ongoing business relationship that has not been terminated by the subscriber by requesting removal from the business's electronic mail list. For the purpose of removal from the business's electronic mail list, the business entity shall provide a means of removal from the entity's electronic mail list in accordance with section 407.1123; or
(c) Electronic mail from a separate legal entity with which a subscriber has an established business relationship on the basis that the entity shares the brand name and the subscriber, and has not otherwise instructed the entity cease further unsolicited electronic mail in accordance with section 407.1123;
(5) "Subscriber", any person, corporation, partnership, or other entity who has subscribed to an interactive computer service and has been designated with one or more electronic mail addresses;
(6) "Unsolicited commercial electronic mail", a commercial electronic mail message sent without the consent of the recipient, by a person with whom the recipient does not have an ongoing business relationship, other than:
(a) An electronic mail message responding to an inquiry from a subscriber who has requested further information and provided an electronic e-mail address;
(b) An electronic mail message initiated by a person licensed by the state of Missouri to carry out a trade, occupation, or profession who is setting or attempting to set an appointment for actions related to that licensed trade, occupation, or profession;
(c) An electronic mail message sent to a subscriber that was in a direct business relationship, not including the parent or subsidiary business organization of the subscriber, with the sender within the previous twelve months;
(d) An electronic mail communication to a subscriber from an original sender which is a bank, farm credit service, or credit union shall not be considered unsolicited electronic mail for purposes of section 407.1135 to 407.1147.
(e) An electronic mail message that is sent to a subscriber from an original sender who has a personal relationship with the subscriber; or
(f) An electronic mail message from the original sender that is indirectly received by a subscriber when another subscriber voluntarily forwards that communication without the knowledge of the original sender and without any consideration provided by the original sender to the subscriber forwarding the communication.
407.1138. No person or entity shall, after January 1, 2005, initiate the transmission of any unsolicited electronic mail to any subscriber in this state who has given notice to the attorney general, in accordance with rules promulgated pursuant to section 407.1141, of such subscriber's objection to receiving unsolicited electronic mail.
407.1141. 1. The attorney general shall establish and provide for the operation of a state database to compile a list of electronic mail addresses of subscribers who object to receiving unsolicited electronic mail. The attorney general shall have such database in operation no later than January 1, 2005.
2. Information contained in the database established pursuant to this section shall be used only for the purpose of compliance with this section or in a proceeding or action pursuant to sections 407.1135 to 407.1147. Such information shall not be considered a public record pursuant to chapter 610, RSMo.
3. The general assembly may appropriate moneys from appropriate funds including the merchandising practices revolving fund established in section 407.140, for the purposes of establishing and operating the state database.
4. Any entity that obtains the database from the attorney general pursuant to subsection 1 of this section may distribute the database to its employees or any independent contractor for use in the independent contractor's business, provided that the independent contractor is regularly associated with the entity and is engaged in the same or similar business as the entity.
5. The attorney general shall notify a web site operator of a pornography site or sites residing on the web site operator's server after a review by the attorney general determining the identified site or sites contain child pornography as defined in section 573.010, RSMo. For the purpose of this subsection, the attorney general shall notify in writing the person designated by the web site operator to receive such notice, or, in the absence of a designation by the web site operator, the chief legal officer of the web site operator, or, in the absence of a chief legal officer, the executive officer of the web site operator. If the web site operator takes action to remove the alleged pornography from its servers after receiving such notice, it shall be immune from suit for its decision to do so. If the web site operator does not promptly remove the alleged pornography, the attorney general may seek a judicial determination that the material is pornography and an order requiring its removal from the web site operator's server within thirty days of the issuance of the order. Failure to remove pornography in response to such an order shall be punished as contempt of court and subject to criminal penalties as set out in sections 573.025 and 573.035, RSMo.
6. No later than July 1, 2004, the attorney general shall promulgate rules governing the establishment and administration of a state database as necessary and appropriate to fully implement the provisions of sections 407.1135 to 407.1147.
7. No rule or portion of a rule promulgated pursuant to the authority of this section shall become effective unless it has been promulgated pursuant to chapter 536, RSMo.
407.1144. 1. Any person or entity who initiates the transmission of any electronic mail message to any subscriber in this state for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, other than a communication responding to an electronic mail message initiated by the subscriber, shall, at the beginning of such message, clearly state the identity of the person or entity initiating the transmission.
2. It shall be a violation of this section for any person that sends an unsolicited commercial electronic mail message to fail to use the exact characters "ADV:" as the first four characters in the subject line of the unsolicited commercial electronic mail message.
3. It shall be a violation of this section for any person that sends an unsolicited commercial electronic mail message that contains adult material or references a website that contains adult material to fail to use the exact characters “XXX:” as the first four characters in the subject line of the unsolicited commercial electronic mail message that contains adult material.
407.1147. 1. The attorney general may initiate proceedings relating to a knowing violation or threatened knowing violation of sections 407.1135 to 407.1147. Such proceedings may include an injunction, a civil penalty up to a maximum of five thousand dollars for each knowing violation, not to exceed twenty-five thousand dollars per day, in any court of competent jurisdiction. The attorney general may issue investigative demands, issue subpoenas, administer oaths, and conduct hearings in the course of investigating a violation of sections 407.1135 to 407.1147.
2. In addition to the penalties provided in subsection 1 of this section, any person or entity that violates sections 407.1135 to 407.1147 shall be subject to all penalties, remedies and procedures provided in sections 407.010 to 407.130. The remedies available in this section are cumulative and in addition to any other remedies available by law.
3. It shall be a defense in any action or proceeding brought pursuant to this section that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent the transmission of unsolicited electronic mail messages in violation of section 407.1138.
4. No action or proceeding may be brought pursuant to this section:
(1) More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
(2) More than two years after the termination of any proceeding or action arising out of the same violation or violations by the state of Missouri, whichever is later.
5. A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator as to an action or proceeding authorized by this section in the manner otherwise provided by law.
6. No electronic mail service provider shall be liable for violations of sections 407.1138 or 407.1144 due to the fact that the provider:
(1) Is an intermediary between the sender and recipient in the transmission of commercial electronic mail that violates sections 407.1138 and 407.1144; or
(2) Provides transmission of unsolicited commercial electronic mail over the provider’s computer network or facilities; or
(3) Takes any voluntary action in good faith to block the receipt or transmission through its service of any electronic mail messages that it believes is, or will be, sent in violation of sections 407.1135 to 407.1147, so long as the provider promptly notified the attorney general of any commercial electronic mail message that it believes are being sent in violation of such sections.