In 1998 the California Legislature amended Business & Professions
Code
§17538.4 to prohibit unsolicited e-mails. The Plaintiff in
Ferguson v.
Friendfinders (2002) A092653 bought suit under this code. The
Trial Court
sustained a demurrer without leave to amend, finding that the Code
violated
the dormant Commerce Clause of the United States Constitution.
BUT!
Division Two of the First Appellate District (San Francisco) held that
Business &
Professions Code §17538.4 does not violate the U.S. Constitution.
Application
If you are receiving unsolicited e-mail in California, the e-mail must
state
it is an advertisement in the subject line by having ADV: in
the first four
characters. If it is an adult advertisement, it must say ADV:ADLT.
The
first line of the e-mail must be a toll free number or e-mail address
that
can be used by the recipient to tell the sender not to send any more
unsolicited e-mail. If a recipient asks to be taken off the list,
the
sender must remove the recipient. The text of the Business &
Professions
code is included below.
If you are getting unsolicited e-mails that do not comply with the code
section, feel free to send them a copy of this e-mail and ask to be
removed or copy and paste the code section included with this e-mail.
Origin of SPAM
According to the Court, it comes from a Monty Python skit in which
a waitress at a
restaurant can offer a patron no single menu item that does not include
spam.
Business & Professions Code 17538.4
(a) No person or entity conducting business in this state shall
facsimile
(fax) or cause to be faxed, or electronically mail (e-mail) or cause
to be
e-mailed, documents consisting of unsolicited advertising material
for the
lease, sale, rental, gift offer, or other disposition of any realty,
goods,
services, or extension of credit unless:
(1) In the case of a fax, that person or entity establishes
a toll-free
telephone number that a recipient of the unsolicited faxed documents
may
call to notify the sender not to fax the recipient any further unsolicited
documents.
(2) In the case of e-mail, that person or entity establishes
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.
(b) All unsolicited faxed or e-mailed documents subject
to this section
shall include a statement informing the recipient of the toll-free
telephone
number that the recipient may call, or a valid return address to which
the
recipient may write or e-mail, as the case may be, notifying the sender
not
to fax or e-mail the recipient any further unsolicited documents to
the fax
number, or numbers, or e-mail address, or addresses, specified by the
recipient.
In the case of faxed material, the statement shall be
in at least
nine-point type. In the case of e-mail, the statement shall be
the first
text in the body of the message and shall be of the same size as the
majority of the text of the message.
(c) Upon notification by a recipient of his or her request
not to receive
any further unsolicited faxed or e-mailed documents, no person or entity
conducting business in this state shall fax or cause to be faxed or
e-mail
or cause to be e-mailed any unsolicited documents to that recipient.
(d) In the case of e-mail, this section shall apply when
the unsolicited
e-mailed documents are delivered to a California resident via an electronic
mail service provider's service or equipment located in this state.
For
these purposes "electronic mail service provider" means any business
or
organization qualified to do business in this state that provides
individuals, corporations, or other entities the ability to send or
receive
electronic mail through equipment located in this state and that is
an
intermediary in sending or receiving electronic mail.
(e) As used in this section, "unsolicited e-mailed documents"
means any
e-mailed document or documents consisting of advertising material for
the
lease, sale, rental, gift offer, or other disposition of any realty,
goods,
services, or extension of credit that meet both of the following
requirements:
(1) The documents are addressed to a recipient with whom
the initiator
does not have an existing business or personal relationship.
(2) The documents are not sent at the request of, or with
the express
consent of, the recipient.
(f) As used in this section, "fax" or "cause to be faxed"
or "e-mail" or
"cause to be e-mailed" does not include or refer to the transmission
of any
documents by a telecommunications utility or Internet service provider
to
the extent that the telecommunications utility or Internet service
provider
merely carries that transmission over its network.
(g) In the case of e-mail that consists of unsolicited
advertising
material for the lease, sale, rental, gift offer, or other disposition
of
any realty, goods, services, or extension of credit, the subject line
of
each and every message shall include "ADV:" as the first four characters.
If these messages contain information that consists of unsolicited
advertising material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
that may
only be viewed, purchased, rented, leased, or held in possession by
an
individual 18 years of age and older, the subject line of each and
every
message shall include "ADV:ADLT" as the first eight characters.
(h) An employer who is the registered owner of more than
one e-mail
address may notify the person or entity conducting business in this
state
e-mailing or causing to be e-mailed, documents consisting of unsolicited
advertising material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
of the
desire to cease e-mailing on behalf of all of the employees who may
use
employer-provided and employer-controlled e-mail addresses.
(i) This section, or any part of this section, shall become
inoperative
on and after the date that federal law is enacted that prohibits or
otherwise regulates the transmission of unsolicited advertising by
electronic mail (e-mail). |