Download This Bill in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
H. 3280
STATUS INFORMATION
General Bill
Sponsors: Rep. J.E. Smith
Document Path: l:\council\bills\agm\18711mm07.doc
Introduced in the House on January 17, 2007
Currently residing in the House Committee on Judiciary
Summary: Commercial electronic mail
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 1/17/2007 House Introduced and read first time HJ-11 1/17/2007 House Referred to Committee on Judiciary HJ-12
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 10 TO TITLE 58 SO AS TO PROVIDE FOR THE ESTABLISHMENT AND PROTECTION OF PRIVACY IN THIS STATE FROM UNWANTED COMMERCIAL ELECTRONIC MAIL SOLICITATION IN THIS STATE, INCLUDING PROVISIONS FOR, AMONG OTHER THINGS, A DATABASE CONSTITUTING A "NO E-MAIL LIST", SPECIFIC CONTENTS OF MESSAGES, ACCURATE ROUTING INFORMATION, CRIMINAL PENALTIES, INVESTIGATIONS BY THE ATTORNEY GENERAL AND THE JUDICIAL CIRCUIT SOLICITORS, AND THE SEEKING OF INJUNCTIVE AND OTHER RELIEF BY THE ATTORNEY GENERAL; TO PROVIDE THAT ELECTRONIC MAIL SERVICE PROVIDERS ARE NOT LIABLE FOR VIOLATIONS OF THIS CHAPTER AND ARE NOT RESPONSIBLE FOR ENFORCEMENT OR LIABLE FOR ERRORS OR OMISSIONS IN THE DATABASE; TO AMEND SECTION 30-4-40, AS AMENDED, RELATING TO MATTERS EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO ADD THE DATABASE ESTABLISHED PURSUANT TO THIS CHAPTER; AND TO AMEND SECTION 16-16-20, AS AMENDED, RELATING TO COMPUTER CRIMES AND PENALTIES, SO AS TO REFERENCE THE REQUIREMENTS OF THIS CHAPTER AND TO PROVIDE FOR THE CRIME OF CRIMINAL TRESPASS IN CONNECTION WITH UNSOLICITED COMMERCIAL ELECTRONIC MAIL.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly recognizes that the citizens of this State receive numerous unwanted commercial electronic mail solicitations from various entities, interests, and industries. The General Assembly further recognizes that the citizens of South Carolina are entitled to enjoy freedom from unwanted intrusions into their privacy.
It is the intent of the General Assembly to:
(1) find a balance between free speech and trade and a citizen's right to privacy; and
(2) provide a citizen who does not wish to receive commercial electronic mail solicitations at home with a means of preventing those e-mails, while allowing a commercial solicitor to continue to e-mail a citizen who does wish to receive that electronic mail at home.
SECTION 2. Title 58 of the 1976 Code is amended by adding:
Section 58-10-10. As used in this chapter:
(1) 'Commercial electronic mail' means messages sent and received electronically consisting of commercial advertising material, the principal purpose of which is to promote the for-profit sale or lease of goods or services to the recipient.
(2) 'Computer services' means computer time or services, including data processing services, internet services, electronic mail services, electronic message services, or information or data stored in connection with any of these services.
(3) 'Electronic mail' means the transmission of information or communication by the use of the internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.
(4) 'Electronic mail service provider' means a person who:
(a) is an intermediary in sending or receiving electronic mail; and
(b) provides to end users of electronic mail services the ability to send or receive electronic mail.
(5) 'Previously established relationship' means a prior or existing relationship, not terminated previously by either party, formed by a voluntary two-way communication between a commercial electronic mail solicitor and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase, or transaction by the residential subscriber regarding a specific product or specific service offered by the commercial electronic mail solicitor, but does not extend to another product or service offered by the commercial electronic mail solicitor. This term also includes an established relationship with a not-for-profit electronic mail solicitor through a previous donation to the entity or participation in the activities of the entity.
(6) 'Residential subscriber' means a person who has subscribed to a residential electronic mail service from an electronic mail service provider or the other persons living or residing with that person.
(7) 'Unsolicited' means electronic mail from or on behalf of a commercial electronic mail solicitor with whom a recipient has no previously established relationship or personal relationship, and not sent at the request of, or with the express consent of the recipient.
Section 58-10-20. A commercial electronic mail solicitor may not send or cause to be sent unsolicited commercial electronic mail to a residential subscriber in this State who has given notice to the electronic mail service provider, in accordance with Section 58-10-30, of the residential subscriber's objection to receiving unsolicited electronic mail, if the electronic mail is:
(1) advertising or offering for sale, lease, rental, or as a gift any goods, services, or property; or
(2) soliciting donations of money, goods, services, or property.
Section 58-10-30. (A) Each electronic mail service provider shall establish and make available, at no cost to residential subscribers, a database to compile a 'No E-Mail List' of residential subscribers who object to receiving unsolicited commercial electronic mail of a type described in Section 58-10-20. The electronic mail service provider shall have the database in operation no later than six months from the effective date of this chapter.
(B) The database may be operated by the electronic mail service provider or by another entity under contract with the electronic mail service provider.
(C) To create the database required by this section, the electronic mail service provider shall:
(1) inform its residential subscribers of the opportunity to provide notification to the electronic mail service provider or its contractor that the residential subscriber objects to receiving unsolicited commercial electronic mail;
(2) forward to each residential subscriber a returnable message by which the residential subscriber may give notice to the electronic mail service provider or its contractor of his:
(a) objection to receiving that mail; or
(b) revocation of that notice;
(3) specify the length of time for which a notice of objection is effective and the effect of a change of electronic e-mail address on the notice;
(4) specify the methods by which a commercial electronic mail solicitor desiring to send unsolicited commercial electronic mail may obtain access to the database as required to avoid sending commercial electronic mail to residential subscribers included in the database.
(D) If a single national database of electronic mail subscribers who object to receiving commercial electronic mail solicitations is established, the electronic mail service provider shall include the part of such single national database that relates to South Carolina in the database established by this section.
Section 58-10-40. A commercial electronic mail solicitor desiring to send commercial electronic mail must be charged a fee payable to the electronic mail service provider for access to or for paper or electronic copies of the database established pursuant to this section. The electronic mail service provider may require that fees so charged are sufficient to cover the provider's costs in the compilation and preparation of the database.
Section 58-10-50. (A) A commercial electronic mail solicitor who sends an unsolicited commercial electronic mail message from within this State or to a residential subscriber in this State shall:
(1) state clearly, at the beginning of the subject line of the message, the label 'ADV', to designate 'advertisements' or 'commercial electronic mail';
(2) state clearly, at the beginning of the subject line of the
message, the label 'ADV:ADLT' to designate 'advertisements' or 'commercial electronic mail' with a sexually explicit content; and
(3) provide instructions and contact information in a conspicuous manner in the message to allow the residential subscriber to opt out of the receipt of further commercial electronic messages from the solicitor.
(B) The failure of a commercial electronic mail solicitor to include the subject designations required in subsection (A)(1) and (2) or to remove a residential subscriber from its electronic mail list as provided in subsection (A)(3) is a violation of this chapter.
Section 58-10-60. A commercial electronic mail solicitor may not send a commercial electronic mail message:
(1) using the internet address or domain name of a third party without the consent of the third party; or
(2) containing false or missing routing information.
Section 58-10-70. The Attorney General and the state's judicial circuit solicitors shall investigate complaints received concerning violations of this chapter. A commercial electronic mail solicitor violating the provisions of this chapter is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days; upon conviction for a second offense, must be fined not more than one thousand dollars or imprisoned for not more than one year; and upon conviction for a third or subsequent offense, must be fined not more than five thousand dollars or imprisoned for not more than five years. Each violation constitutes a separate offense for purposes of the criminal penalties in this chapter. In addition, if the Attorney General finds that there has been a violation of this chapter, he may seek other relief, including injunctive relief, as the court considers appropriate against the commercial electronic mail solicitor.
Section 58-10-80. A court of this State may exercise personal jurisdiction over a nonresident or his executor or administrator as to an action or proceeding authorized by this chapter in accordance with the provisions of Part 8, Chapter 2, Title 36.
Section 58-10-90. The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are in addition to all other causes of action, remedies, and penalties provided by law including, but not limited to, the criminal penalties provided in Section 16-16-20.
Section 58-10-100. An electronic mail service provider is not liable for the enforcement of the provisions of this chapter."
SECTION 3. Section 30-4-40(a) of the 1976 Code, as last amended by Act 125 of 2005, is further amended by adding an appropriately numbered item at the end to read:
"( ) The 'No E-Mail List' database established by Chapter 10, Title 58."
SECTION 4. Section 16-16-20(1)(a) of the 1976 Code, as last amended by Act 169 of 2002, is further amended to read:
"(a) directly or indirectly access or cause to be accessed a computer, computer system, or computer network for the purpose of:
(i) devising or executing any scheme or artifice to defraud;
(ii) obtaining money, property, or services by means of false or fraudulent pretenses, representations, promises; or
(iii) committing any other crime.; or
(iv) falsely identifying with the intent to deceive or defraud the recipient or forge commercial electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited commercial electronic mail through or into the computer network of an electronic mail service provider or its residential subscribers."
SECTION 5. Section 16-16-20 of the 1976 Code, as last amended by Act 339 of 2002, is further amended by adding an appropriately numbered subitem at the end to read:
"( ) It is unlawful for a person wilfully, knowingly, maliciously, or without authorization to directly or indirectly access or cause to be accessed a computer, computer system, computer network, or computer services as defined in Section 58-10-10(2), for the purpose of sending or causing to be sent unsolicited commercial electronic mail to a residential subscriber in violation of Chapter 10, Title 58. The State Attorney General and the judicial circuit solicitors have the enforcement powers granted in Chapter 10, Title 58 in connection with the 'No E-Mail List'."
SECTION 6. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, October 10, 2011 at 1:33 P.M.