Unsolicited Commercial Email; Prohibited
Establishes that unpermitted or misleading electronic mail is prohibited and constitutes an unfair trade practice; provides for damages; establishes immunity from liability for interactive computer services.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
relating to commercial electronic mail.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
COMMERCIAL ELECTRONIC MAIL
§ -1 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Assist the transmission" means actions taken by a person to provide substantial assistance or support that enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any practice that violates chapter 480.
"Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.
"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
"Initiate the transmission" means the action by the original sender of an electronic mail message; but it does not include an action by any intervening interactive computer service that may handle or retransmit the message, unless that intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the original sender is engaged, or intends to engage, in any act or practice that violates chapter 480.
"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
"Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.
"Person" means a person, corporation, partnership, or association.
"Unsolicited commercial electronic mail" means any electronic mail advertisement that is:
(1) Addressed to a recipient with whom the initiator does not have a prior or existing business or personal relationship; or
(2) Not sent at the request of or with the expressed consent of the recipient.
§ -2 Electronic mail; prohibitions. (a) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission of a commercial electronic mail message, either from a computer located in Hawaii or to an electronic mail address that the sender knows or has reason to know is held by a state resident, that:
(1) Uses a third party's internet domain name without permission of the third party or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(2) Contains false or misleading information in the subject line.
(b) For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Hawaii resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.
§ -3 Electronic mail; violations. (a) It is a violation of chapter 480 to initiate the transmission, or to conspire with another person to initiate the transmission, of a commercial electronic mail message prohibited under section -2.
(b) It is a violation of chapter 480 to assist in the transmission of a commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any act or practice prohibited under section -2.
(c) A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying chapter 480.
§ -4 Violations; damages. (a) Damages to the recipient of a commercial electronic mail message sent in violation of this chapter shall be $500 or actual damages, whichever is greater.
(b) Damages to an interactive computer service resulting from a violation of this chapter shall be $1,000 or actual damages, whichever is greater.
§ -5 Blocking of commercial electronic mail by interactive computer service; immunity from liability. (a) An interactive computer service, upon its own initiative, may block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this chapter.
(b) No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this chapter."
SECTION 2. This Act shall apply to any act that occurs after its effective date.
SECTION 3. This Act shall take effect upon its approval.