MISSOURI REVISED STATUTES
TITLE 26. TRADE AND COMMERCE
CHAPTER 407. MERCHANDISING PRACTICES
ELECTRONIC MAIL PRACTICES
(Enacted in 2000)
Amended by House Bill 228 (2003)
(approved July 11, 2003; effective August 28, 2003)
§ 407.1120. As used in sections 407.1120
to 407.1132, the following terms mean:
(1) "Assist the transmission",
actions taken by a person to provide substantial assistance or
support which enables any person to formulate, compose, send,
originate, initiate or transmit a commercial electronic mail
message;
(2) "Commercial electronic mail
message", an electronic mail message sent for the purpose of
promoting real property, goods or services for sale or lease.
Commercial electronic mail message does not include:
(a) An electronic mail message to which an
interactive computer service provider has attached an advertisement
in exchange for free use of an electronic mail account, when the
user has agreed to such an arrangement;
(b) An electronic mail message between persons
with a prior business relationship; or
(c) An electronic mail message between persons
with a personal relationship;
(3) "Electronic mail address", a
destination, commonly expressed as a string of characters, to which
electronic mail may be sent or delivered;
(4) "Initiate the transmission", the
action by the original sender of an electronic mail message, but not
the action by any intervening interactive computer service that may
handle or retransmit the message, unless such intervening
interactive computer service assists in the transmission of an
electronic mail message when it knows, or consciously avoids
knowing, that the person initiating the transmission is engaged, or
intends to engage, in any act or practice that violates sections
407.1120 to 407.1132;
(5) "Interactive computer service",
any information service, system or access software provider that
provides or enables computer access by multiple users to a computer
server, including specifically a service or system that provides
access to the Internet and such systems operated or services offered
by libraries or educational institutions;
(6) "Internet domain name", a
globally unique, hierarchical reference to an Internet host or
service, assigned through centralized Internet naming authorities,
comprising a series of character strings separated by periods, with
the right-most string specifying the top of the hierarchy.
§ 407.1123.
1. No person or entity conducting business in
this state shall electronically mail (e-mail) or cause to be
e-mailed, documents consisting of advertising material for the
lease, sale, rental, gift offer or other disposition of any realty,
goods, services or extensions of credit without a toll-free
telephone number or valid sender operated return e-mail address that
the recipient of the unsolicited documents may call or e-mail to
notify the sender not to e-mail any further unsolicited documents.
2. It is an unlawful merchandising practice
pursuant to section 407.020 to assist in the transmission of an
unsolicited commercial electronic mail message when the person
providing the assistance knows, or consciously avoids knowing, that
the initiator of the commercial electronic mail message is engaged,
or intends to engage, in any act or practice that violates sections
407.1120 to 407.1132.
3. As used in this section, the phrase
"assist or initiate the transmission" does not include or
refer to the transmission of any commercial electronic mail message
by a telecommunications utility or Internet service provider to the
extent that the telecommunications utility or Internet service
provider merely carries such transmission over its network.
§ 407.1126. It is an unlawful merchandising
practice pursuant to section 407.020 to violate the provisions of
sections 407.1120 to 407.1132.
§ 407.1129.
1. Damages to the recipient of a commercial
electronic mail message sent in violation of sections 407.1120 to
407.1132 are five hundred dollars, or actual damages, whichever is
greater.
2. Damages to an interactive computer service
resulting from a violation of sections 407.1120 to 407.1132 are one
thousand dollars, or actual damages, whichever is greater.
§ 407.1132.
1. An interactive computer service may, upon
its own initiative, block the receipt or transmission through its
service of any commercial electronic mail that it reasonably
believes is, or will be, sent in violation of sections 407.1120 to
407.1132.
2. No interactive computer service may be held
liable for any action voluntarily taken in good faith to block the
receipt or transmission through its service of any commercial
electronic mail which it reasonably believes is, or will be, sent in
violation of sections 407.1120 to 407.1132.
3. Sections 407.1120 to 407.1132 shall be of
no force and effect on and after the date that federal law is
enacted that prohibits or otherwise regulates the transmission of
unsolicited commercial electronic mail messages.
§ 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 commercial electronic mail may be sent or delivered;
(3) "Established business
relationship", an existing relationship formed by a voluntary
communication between a person or entity and the recipient with or
without an exchange of consideration, on the basis of an inquiry,
application, purchase, or use by the recipient regarding products or
services offered by such person or entity;
(4) "Initiate the transmission", the
action by the original sender of an unsolicited commercial
electronic mail solicitation that results in receipt by a subscriber
of that solicitation, including commercial electronic mail received
by a subscriber which was sent by a third party at the request of or
direction of the original sender;
(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 established business relationship, other than:
(a) A commercial electronic mail message
responding to an inquiry from a subscriber who has requested
further information and provided a commercial electronic mail
address;
(b) A commercial 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) A commercial electronic mail message
sent to a subscriber that was in an established business
relationship with the sender, including a parent or subsidiary
business organization of the sender that shares the same brand
name, within the previous twenty-four months unless the recipient
requests to be removed from the entity's electronic mail list in
accordance with section 407.1123;
(d) A commercial electronic mail
communication sent to a subscriber from an original sender which
is a bank, farm credit service, or credit union shall not be
considered unsolicited commercial electronic mail for purposes of
section 407.1135 to 407.1147;
(e) A commercial electronic mail message
that is sent to a subscriber from an original sender who has a
personal relationship with the subscriber; or
(f) A commercial 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.
§ 407.1144.
1. It shall be a violation of this section for
any person or entity who initiates the transmission of any
commercial electronic mail message to any subscriber in this state
to provide a false identity or false or misleading information in
the subject line.
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 obscene material as defined in section
573.010, RSMo, or references a web site that contains obscene
material to fail to use the exact characters "ADV:ADLT" as
the first eight characters in the subject line of the unsolicited
commercial electronic mail message that contains obscene material.
4. It shall be a violation of this section to
initiate the transmission of any unsolicited commercial electronic
mail to a subscriber in this state who has notified a sender not to
initiate the transmission of any further unsolicited commercial
electronic mail. For purposes of this subsection, a subscriber is
deemed to have notified a sender not to initiate the transmission of
any further unsolicited commercial electronic mail if the
subscriber:
(1) Replies to a sender at the valid
sender-operated return electronic mail address or the sender's
toll-free telephone number with directions not to initiate the
transmission of any further unsolicited commercial electronic mail
as provided in section 407.1123; or
(2) Otherwise gives actual notice to a
sender not to initiate the transmission of further unsolicited
commercial electronic mail; or
(3) Notifies the attorney general if a
sender fails to provide a toll-free telephone number or valid
sender-operated return electronic mail address as required by
section 407.1123.
5. The attorney general shall promulgate rules
and regulations as he or she deems necessary and appropriate to
fully implement the provisions of sections 407.1135 to 407.1147.
§ 407.1147.
1. The attorney general may initiate
proceedings relating to a 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. Any civil penalties recovered pursuant to this
section shall be credited to the merchandising practices revolving
fund.
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 commercial
electronic mail messages in violation of section 407.1144.
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 telecommunications utility, electronic
mail service provider, or internet service provider shall be liable
for violations of section 407.1144 when:
(1) It is an intermediary between the sender
and recipient in the transmission of an email that violates sections
407.1135 to 407.1147; or
(2) It provides transmission of unsolicited
commercial electronic mail messages over the provider's computer
network or facilities; or
(3) It voluntarily takes action in good faith
to block the receipt or transmission through its service of any
electronic mail advertisements that it believes are, or will be,
sent in violation of sections 407.1135 to 407.1147.
