72nd OREGON LEGISLATIVE ASSEMBLY
2003 Regular Session
CHAPTER ___
(S.B.
910 (2003), approved September 17, 2003)
AN ACT
Relating to electronic mail messages; creating new provisions; and
amending ORS 646.607.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Legislative
Assembly finds:
(a) The economic harm and invasion of privacy
resulting from the transmission and receipt of unsolicited commercial
electronic mail messages constitute a threat to the welfare of the
people of this state.
(b) Unsolicited commercial electronic mail
messages cost Oregonians hundreds of thousands of dollars each year
because of:
(A) The need to acquire additional capacity
for computer systems;
(B) The need to acquire software programs to
filter and control unsolicited commercial electronic mail messages;
(C) The transmission of computer viruses by
unsolicited commercial electronic mail messages; and
(D) Time and productivity lost when businesses
and public bodies must devote personnel resources:
(i) To creating and maintaining local
electronic mail message filters;
(ii) To removing infestations of unsolicited
commercial electronic mail messages from networks and individual
mailboxes;
(iii) To unclogging transmission paths; and
(iv) To repairing and restarting computer
systems that have experienced resulting system failures.
(c) Unsolicited commercial electronic mail
messages can be used to transmit pornographic material in a manner
that is not readily apparent to recipients, which can result in the
exposure of minors to pornographic material.
(d) Existing state and federal laws are
inadequate to prevent the harm to the public welfare that results from
the transmission and receipt of unsolicited commercial electronic mail
messages.
(e) Requiring persons that transmit unsolicited
commercial electronic mail messages to label the messages in a manner
readily recognizable by a recipient will enable recipients to
recognize unsolicited commercial electronic mail messages and choose
whether to avoid receiving or reading the messages.
(2) The purpose of sections 3 (2) and 4 of this
2003 Act is to prevent the harmful effects set forth in subsection
(1)(b) and (c) of this section, which result from the receipt of
unsolicited electronic mail messages that are not labeled in a manner
readily recognizable by a recipient as unsolicited electronic mail
messages. Requiring persons that transmit unsolicited electronic mail
messages to label the messages as set forth in section 4 of this 2003
Act enables recipients of unsolicited electronic mail messages to
recognize and choose whether to avoid receiving and reading the
messages. + }
SECTION 2. { + As used in sections 1
to 8 of this 2003 Act:
(1) 'Business relationship' means a voluntary
exchange of communication initiated by an electronic mail message
recipient's inquiry about, application for or purchase or use of real
estate, goods or services.
(2) 'Commercial electronic mail message' means an
electronic mail message transmitted for the purpose of encouraging the
purchase, rental or investment in real estate, goods or services.
(3) 'Control' has the meaning given that term in
ORS 60.825.
(4) 'Domain name' means an alphanumeric
designation that is registered with or assigned by a domain name
registrar as part of an electronic address on the Internet.
(5) 'Electronic mail message' means an electronic
message or computer file that contains an image of a message transmitted
between computers or electronic terminals. 'Electronic mail message'
does not include a document transmitted by a facsimile machine as
defined in ORS 646.872.
(6) 'Electronic mail service provider' means a
person that provides:
(a) An end user with electronic mail message
services, including the ability to send or receive electronic mail
messages; and
(b) A system that connects the user to a
computer server and the Internet.
(7) 'Person' has the meaning given that term in
ORS 646.605.
(8) 'Subsidiary' means a person that directly, or
indirectly through one or more intermediaries, is controlled by, or is
under common control with, another person.
(9) 'Unsolicited commercial electronic mail
message' means a commercial electronic mail message transmitted without
the consent of the recipient. + }
SECTION 3. { + In the course of
offering real estate, goods or services for sale, rent or other
disposition, a person may not:
(1) Transmit, ask another person to transmit or
assist in the transmission of an electronic mail message that:
(a) Uses an Internet domain name without
permission of the person that holds the license to use the name;
(b) Contains false or misleading information in
the subject line; or
(c) Misrepresents or hinders a person from
determining the point of origin or transmission path of the electronic
mail message.
(2) Transmit, ask a person to transmit or assist
in the transmission of an unsolicited commercial electronic mail message
to a person in this state. + }
SECTION 4. { + (1) Section 3 (2) of
this 2003 Act does not apply if:
(a) The person that transmits the electronic
mail message:
(A) Has established a business relationship
with the person that receives the electronic mail message; + }
{ + (B)(i) Controls the person that
established the business relationship; and
(ii) Offers to the person that receives the
electronic mail message real estate, goods or services offered by
the person that established the business relationship;
(C)(i) Is a subsidiary of the person that
established the business relationship;
(ii) Shares the principal name of the person
that established the business relationship;
(iii) Is located on the same premises as the
person that established the business relationship; and
(iv) Offers to the person that receives the
electronic mail message real estate, goods or services offered by
the person that established the business relationship;
(D) Is an organization and the electronic mail
message is solely to communicate with a member, employee or
contractor of the organization; or
(E) Labels the message by including in the
subject line the term 'ADV:' in a type size readily visible to the
recipient. The label shall immediately follow the colon after the
word ' subject' or some abbreviation of the word 'subject'; or
(b) The predecessor of the person that transmits
the electronic mail message had a business relationship with the
person that receives the electronic mail message.
(2) Section 3 of this 2003 Act does not apply to
an electronic mail service provider acting only as an intermediary
between the persons that transmit and receive the electronic mail
message. + }
SECTION 5. { + (1) A person whose
Internet domain name is used without permission in violation of section
3 (1)(a) of this 2003 Act may bring an action against the person that
violated section 3 (1)(a) of this 2003 Act to recover actual damages or
liquidated damages of $500, whichever is greater.
(2) A person that receives an electronic mail
message transmitted in violation of section 3 (1)(b) or (c) of this 2003
Act may bring an action against the person that violated section 3
(1)(b) or (c) of this 2003 Act to recover actual damages or liquidated
damages of $500, whichever is greater.
(3) A person that receives an electronic mail
message transmitted in violation of section 3 (2) of this 2003 Act may
bring an action against the person that violated section 3 (2) of this
2003 Act to recover actual damages or liquidated damages of $200,
whichever is greater.
(4) The remedies provided by subsections (1) to
(3) of this section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to recover
liquidated damages in lieu of actual damages, the court may not award
the person more than $25,000 per day.
(5) An award of liquidated damages on a claim
under this section is not subject to ORS 18.535, 18.537 or 18.540.
(6)(a) A person who is an individual may bring the
action in the circuit court of the county in which the individual
resides.
(b) A person that is not an individual may bring
the action in the circuit court of a county in which the person
maintains an office.
(7) The court may award reasonable attorney fees
to a plaintiff that prevails in an action on a claim under this section.
(8) The remedies provided in this section are in
addition to and not exclusive of any other remedy provided by law of
this state. + }
SECTION 6. { + (1) An electronic mail
service provider whose service is used by a person to transmit an
electronic mail message in violation of section 3 (1) of this 2003 Act
may bring an action against the person that violated section 3 (1) of
this 2003 Act to recover actual damages or liquidated damages of $1,000,
whichever is greater.
(2) An electronic mail service provider whose
service is used by a person to transmit an electronic mail message in
violation of section 3 (2) of this 2003 Act may bring an action against
the person that violated section 3 (2) of this 2003 Act to recover
actual damages or liquidated damages of $1,000, whichever is greater.
(3) The remedies provided by subsections (1) and
(2) of this section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to recover
liquidated damages in lieu of actual damages, the court may not award
the person more than $25,000 per day.
(4) An award of liquidated damages on a claim
under this section is not subject to ORS 18.535, 18.537 or 18.540.
(5) The electronic mail service provider may bring
the action in the circuit court of a county in which:
(a) The provider maintains an office; or
(b) The person that violated section 3 of this
2003 Act has sufficient contacts for the court to exercise personal
jurisdiction over the person.
(6) The court may award reasonable attorney fees
to an electronic mail service provider that prevails in an action on a
claim under this section.
(7) The remedies provided in this section are in
addition to and not exclusive of any other remedy provided by law of
this state. + }
SECTION 7. { + If an electronic mail
service provider acts in good faith to block the receipt, or
transmission through the provider's service, of electronic mail messages
that the provider anticipates persons will transmit in violation of
section 3 of this 2003 Act, a court may not, for blocking receipt or
transmission of the electronic mail messages, find the provider to be in
violation of section 3 of this 2003 Act. + }
SECTION 8. { + Notwithstanding ORCP
32, a court may not order an action to be maintained as a class action
if the action includes a claim under section 5 of this 2003 Act and the
person against which the claim is asserted had, at the time of the
transmission of the electronic mail message that forms the basis of the
claim, established a business relationship with the person that received
the message. + }
SECTION 9. ORS 646.607 is amended to
read: 646.607. A person engages in an unlawful practice when in the
course of the person's business, vocation or occupation the person:
(1) Employs any unconscionable tactic in
connection with sale, rental or other disposition of real estate, goods
or services, or collection or enforcement of an obligation; { - or - }
{ + (2) Violates section 3 of this 2003 Act; or +
} { - (2) - } { + (3) + }Fails to deliver all or any portion of real
estate, goods or services as promised, and upon request of the customer,
fails to refund any money { - which - } { + that + }has been received
from the customer { - which - } { + that + }was for the purchase of the
undelivered real estate, goods or services and { - which - } { + that +
}is not retained by the seller pursuant to any right, claim or defense
asserted in good faith. This subsection does not create a warranty
obligation and { - shall - } { + does + }not apply to a dispute over the
quality of real estate, goods or services delivered to a customer.
SECTION 10. ORS 646.607, as amended
by section 9 of this 2003 Act, is amended to read:
646.607. A person engages in an unlawful practice
when in the course of the person's business, vocation or occupation the
person:
(1) Employs any unconscionable tactic in
connection with sale, rental or other disposition of real estate, goods
or services, or collection or enforcement of an obligation; { + or + }
{ - (2) Violates section 3 of this 2003 Act; or -
}
{ - (3) - } { + (2) + } Fails to deliver all or
any portion of real estate, goods or services as promised, and upon
request of the customer, fails to refund any money that has been
received from the customer that was for the purchase of the undelivered
real estate, goods or services and that is not retained by the seller
pursuant to any right, claim or defense asserted in good faith. This
subsection does not create a warranty obligation and does not apply to a
dispute over the quality of real estate, goods or services delivered to
a customer.
SECTION 11. { + (1) Section 3 of this
2003 Act applies to transmissions of electronic mail messages occurring
on or after March 1, 2004.
(2) Sections 5 and 6 of this 2003 Act and the
amendments to ORS 646.607 by section 9 of this 2003 Act apply to
violations occurring on or after March 1, 2004. + }
SECTION 12. { + The amendments to ORS
646.607 by section 10 of this 2003 Act become operative on January 2,
2006. + }
SECTION 13. { + Sections 1 to 8 and
11 of this 2003 Act are repealed on January 2, 2006. + }
