UTAH CODE
Title 13. Commerce and Trade
Chapter 36. Unsolicited Commercial and Sexually Explicit Email Act
Added by Utah Laws 2002, Chapters 125 & 229
(House
Bill 80, approved March 18, 2002; effective May 6, 2002; and
House
Bill 143, approved March 26, 2002; effective May 6, 2002)
13-36-101. Title.
This chapter is known as the "Unsolicited
Commercial and Sexually Explicit Email Act."
13-36-102. Definitions.
As used in this chapter:
(1) "Commercial" means for the purpose of
promoting the sale, lease, or exchange of goods, services, or real
property.
(2) "Computer network" means two or more
computers that are interconnected to exchange electronic messages,
files, data, or other information.
(3) "Email" means an electronic message,
file, data, or other information that is transmitted:
(a) between two or more computers, computer
networks, or electronic terminals; or
(b) within a computer network.
(4) "Email address" means a destination,
commonly expressed as a string of characters, to which email may be sent
or delivered.
(5) "Email service provider" means a person
that:
(a) is an intermediary in the transmission of email
from the sender to the recipient; or
(b) provides to end users of email service the
ability to send and receive email.
(6) "Internet domain name" means a globally
unique, hierarchal reference to an Internet host or service, assigned
through centralized Internet authorities, comprising a series of
character strings separated by periods, with the right-most string
specifying the top of the hierarchy.
(7) (a) "Sexually explicit email"
means an email that contains, promotes, or contains an electronic link
to material that is harmful to minors, as defined in Section 76-10-1201.
(b) An email is a sexually explicit email if it
meets the definition in subsection (7)(a), even if the email also
meets the definition of a commercial email.
(8) (a) "Unsolicited" means without
the recipient's express permission, except as provided in Subsection
(8)(b).
(b) A commercial email is not
"unsolicited" if the sender has a preexisting business or
personal relationship with the recipient.
13-36-103. Unsolicited commercial or adult email --
Requirements.
(1) Each person who sends or causes to be sent an
unsolicited commercial email or an unsolicited sexually explicit email
through the intermediary of an email service provider located in the
state or to an email address held by a resident of the state shall:
(a) conspicuously state in the email the sender's:
(i) legal name;
(ii) correct street address; and
(iii) valid Internet domain name;
(b) include in the email a subject line that
contains:
(i) for a commercial email, "ADV:" as the
first four characters; or
(ii) for a sexually explicit email, "ADV:ADULT"
as the first nine characters;
(c) provide the recipient a convenient, no-cost
mechanism to notify the sender not to send any future email to the
recipient, including:
(i) return email to a valid, functioning return
electronic address; and
(ii) for a sexually explicit email and if the
sender has a toll-free telephone number, the sender's toll-free
telephone number; and
(d) conspicuously provide in the text of the email
a notice that:
(i) informs the recipient that the recipient may
conveniently and at no cost be excluded from future commercial or
sexually explicit email, as the case may be, from the sender; and
(ii) for a sexually explicit email and if the
sender has a toll-free telephone number, includes the sender's
toll-free telephone number that the recipient may call to be excluded
from future email from the sender.
(2) A person who sends or causes to be sent an
unsolicited commercial email or an unsolicited sexually explicit email
through the intermediary of an email service provider located in the
state or to an email address held by a resident of the state may not:
(a) use a third party's Internet domain name in
identifying the point of origin or in stating the transmission path of
the email without the third party's consent;
(b) misrepresent any information in identifying the
point of origin or the transmission path of the email; or
(c) fail to include in the email the information
necessary to identify the point of origin of the email.
(3) If the recipient of an unsolicited commercial
email or an unsolicited sexually explicit email notifies the sender that
the recipient does not want to receive future commercial email or future
sexually explicit email, respectively, from the sender, the sender may
not send that recipient a commercial email or a sexually explicit email,
as the case may be, either directly or through a subsidiary or
affiliate.
13-36-104. Criminal penalty.
(1) A person who violates any requirement of Section
13-36-103 with respect to an unsolicited sexually explicit email is
guilty of a class B misdemeanor.
(2) A criminal conviction or a penalty assessed as a
result of a criminal conviction under Subsection (1) does not relieve
the person convicted or assessed from civil liability in an action under
Section 13-36-105.
13-36-105. Civil action for violation -- Election on damages
-- Costs and attorney fees -- Defense.
(1) For any violation of a provision of Section
13-36-103, an action may be brought by:
(a) a person who received the unsolicited
commercial email or unsolicited sexually explicit email with respect
to which the violation under Section 13-36-103 occurred; or
(b) an email service provider through whose
facilities the unsolicited commercial email or unsolicited sexually
explicit email was transmitted.
(2) In each action under Subsection (1):
(a) a recipient or email service provider may:
(i) recover actual damages; or
(ii) elect, in lieu of actual damages, to recover
the lesser of:
(A) $10 per unsolicited commercial email or
unsolicited sexually explicit email received by the recipient or
transmitted through the email service provider; or
(B) $25,000 per day that the violation occurs; and
(b) each prevailing recipient or email service
provider shall be awarded costs and reasonable attorney fees.
(3) An email service provider does not violate
Section 13-36-103 solely by being an intermediary between the sender and
recipient in the transmission of an email that violates that section.
(4) The violation of Section 13-36-103 by an employee
does not subject the employee's employer to liability under that section
if the employee's violation of Section 13-36-103 is also a violation of
an established policy of the employer that requires compliance with the
requirements of Section 13-36-103.
(5) It is a defense to an action brought under this
section that the unsolicited commercial email or unsolicited sexually
explicit email was transmitted accidentally.
