Anti-Spamming Law

Makes unlawful the shifting of advertising costs to recipients of
electronically broadcast advertisements. Provides for damages and
penalties for violations.  Sets jurisdiction and venues for civil
action.  Provides for affirmative defenses and criminal penalties
for forgery of domain name.

THE SENATE                              S.B. NO.           651
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that the proliferation of
 2 electronic means of communication has caused a significant
 3 increase in the number of advertisements sent to recipients.
 4 When unwanted electronic mass mailings are transmitted, such as
 5 e-mail, the communication costs are shifted from advertisers to
 6 their recipients.  These computer recipients incur unnecessary
 7 additonal costs through increased communications charges, and
 8 loss of communication service time due to system interruptions
 9 and network shut downs caused by overloads of unsolicited
10 electronic advertisements.  Because of this problem, the
11 legislature further finds that there is a compelling state
12 interest to curb this practice by advertisers.
13      The purpose of this act is to make unlawful the shifting of
14 advertising costs to recipients of electronically broadcast
15 advertisements, provide damages and penalties for violations, set
16 jurisdiction and venues for civil action, and provide for
17 affirmative defenses and criminal penalties for forgery of domain
18 names.

Page 2                                                     
                                     S.B. NO.           651

 1      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 2 a new chapter to be appropriately designated and to read as
 3 follows:
 4                           "CHAPTER   
 5                     COST-SHIFTED ADVERTISING
 6         -1 Definitions.  For the purposes of this chapter,
 7 unless the context requires otherwise:
 8      "Address" means a unique identifier used to electronically
 9 route messages of any type or format to a person.
10      "Advertisement" means a message in any electronic medium
11 sent with the primary intention of directly or indirectly
12 promoting or assisting a person to realize a benefit or profit
13 through a sale or to further the person's interests.
14      "Advertiser" means a person, as defined in this section,
15 making, commissioning, or sending an advertisement.
16      "Domain" or "domain name" means the uniform resource locator
17 (url) registered with any recognized domain registration services
18 in accordance with prevailing Internet standards, or the IP
19 number, as determined by prevailing Internet standards, which
20 uniquely identifies the name or location of a personal, business,
21 or organizational presence on the Internet.
22      "Person" means any individual or profit or nonprofit
23 organization.
24      "Remedy" means any civil remedial right to which an
25 aggrieved party is entitled with or without resort to a tribunal.

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                                     S.B. NO.           651

 1         -2 Cost-shifted advertising unlawful.  It shall be
 2 unlawful to commission or send any advertisement which shifts the
 3 cost for the delivery or receipt of the advertisement from the
 4 advertiser to any other person without the person's prior
 5 documented consent to hold, transfer, or receive the
 6 advertisement.  The person or persons bearing these unlawful
 7 costs shall be entitled to a remedy.
 8         -3 Damages.(a)  Each person who is entitled to a
 9 remedy under section    -2, for each copy of an advertisement
10 received, shall be entitled to obtain:
11      (1)  Damages up to the greater of:
12           (A)  The amount of actual economic damages found by
13                agreement or the trier of fact; or
14           (B)  $500;
15      (2)  An order enjoining the cost-shifting acts pursuant to
16           section    -2;
17      (3)  Orders necessary to restore to any party to the suit
18           any money or property, real or personal, which may have
19           been acquired in violation of this chapter; and
20      (4)  Any other relief which the court deems proper,
21           including the appointment of a receiver or the
22           revocation of a license or certificate authorizing a
23           person to engage in business in this State if the
24           judgement has not been satisfied within three months
25           ofthe date of the final judgement.  The court may not

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                                     S.B. NO.           651

 1           revoke or suspend a license to do business in this
 2           State or appoint a receiver to take over the affairs of
 3           a person who has failed to satisfy a judgement if the
 4           person is a licensee of or regulated by an agency of
 5           this State which has statutory authority to revoke or
 6           suspend a license or to appoint a receiver or trustee.
 7           The costs and fees of a receivership or other relief
 8           shall be assessed against the defendant.
 9      (b)  On a finding by the court that an action under this
10 section was groundless in fact or law, brought in bad faith, or
11 brought only for the purposes of harassment, the court shall
12 award to the defendant reasonable and necessary attorneys' fees
13 and court costs.
14      (c)  Each person who prevails shall be awarded court costs
15 and reasonable attorneys' fees.
16         -4 Knowing or intentional violation.  If the trier of
17 fact finds that the conduct of the defendant was committed
18 knowingly, the plaintiff may recover treble damages.  If the
19 trier of fact finds the conduct was committed intentionally, the
20 plaintiff may recover six times the amount of damages.
21         -5 Jurisdiction.  For all purposes of this chapter,
22 when determining "minimum contacts" for jurisdictional purposes,
23 a court shall consider whether a reasonable person may have

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                                     S.B. NO.           651

 1 determined that a recipient of a cost-shifted advertisement is a
 2 resident of this State.  Specific jurisdiction shall be extended
 3 if a determination of residency in this State may reasonably be
 4 established through postings to public places or in publications
 5 readily accessible to the defendant such that a person exercising
 6 a reasonable degree of diligence would be put on notice that the
 7 plaintiff is a resident of this State.
 8         -6 Venue.  For the purposes of this chapter, an action
 9 shall be brought in:
10      (1)  The county in which the plaintiff resides;
11      (2)  The county from which the defendant or an authorized
12           agent sent an advertisement made the subject of the
13           action;
14      (3)  The county from which the defendant or an authorized
15           agent authorized or commissioned the sending of an
16           advertisement made the subject of the action; or
17      (4)  Any county in which venue is proper under section
18           603-36 or 604-7.
19         -7 Affirmative defenses.  It is an affirmative defense
20 to an action under this chapter that:
21      (1)  A recipient explicitly requested that the defendant
22           send cost-shifted advertisement; and

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                                     S.B. NO.           651

 1      (2)  An advertisement was sent to a recipient at a time or
 2           to a place or an address designated by the recipient to
 3           receive cost-shifted advertisements.
 4         -8 Criminal penalty for forgery of domain name.  The
 5 addition of false or misleading domains or domain names to
 6 advertisements sent in electronic mail or via the Internet shall
 7 be a misdemeanor if done with reckless disregard and a class C
 8 felony if done knowingly and intentionally.
 9         -9 Construction and application.  This chapter shall be
10 liberally construed and applied to promote its underlying
11 purposes, which are to protect consumers and businesses from
12 unfairly bearing the costs of advertising, and from dishonesty in
13 advertising and to provide efficient and economical procedures to
14 secure this protection."
15      SECTION 3.  This Act shall take effect upon its approval.
17                              INTRODUCED BY:______________________