July 13, 2011, Introduced by Senators ANDERSON, GREEN, KOWALL, HOPGOOD, BIEDA, WHITMER, GREGORY, JOHNSON, HOOD, NOFS, HUNTER and JANSEN and referred to the Committee on Energy and Technology.
A bill to amend 2003 PA 42, entitled
"Unsolicited commercial e-mail protection act,"
by amending the title and sections 1, 2, 7, and 8 (MCL 445.2501,
445.2502, 445.2507, and 445.2508) and by adding section 6a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to require certain notices regarding the transmission
of unsolicited commercial e-mail and text messages; to establish
procedures for e-mail service providers; to allow recipients of e-
mail
and text messages to be excluded from receiving future
unsolicited commercial e-mail and text messages; and to prescribe
penalties and remedies.
Sec. 1. This act shall be known and may be cited as the
"unsolicited commercial e-mail and text message protection act".
Sec. 2. As used in this act:
(a) "Commercial e-mail" means an electronic message, file,
data, or other information promoting the sale, lease, or exchange
of goods, services, real property, or any other thing of value that
is transmitted between 2 or more computers, computer networks, or
electronic terminals or within a computer network.
(b) "Commercial text message" means a text message promoting
the sale, lease, or exchange of goods, services, real property, or
any other thing of value.
(c) (b)
"Computer network" means
2 or more computers that are,
directly or indirectly, interconnected to exchange electronic
messages, files, data, or other information.
(d) (c)
"E-mail address" means a
destination, commonly
expressed as a string of characters, to which e-mail may be sent or
delivered.
(e) (d)
"E-mail service provider"
means a person that is an
intermediary in the transmission of e-mail or provides to end users
of e-mail service the ability to send and receive e-mail.
(f) (e)
"Internet domain name"
means a globally unique,
hierarchical 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.
(g) (f)
"Person" means an
individual, corporation,
partnership, association, governmental entity, or any other legal
entity.
(h) (g)
"Preexisting business
relationship" means a
relationship existing before the receipt of an e-mail or text
message formed voluntarily by the recipient with another person by
means of an inquiry, application, purchase, or use of a product or
service of the person sending the e-mail or text message.
(i) "Text message service provider" means a person that is an
intermediary in the transmission of text messages or provides to
end users of text message service the ability to send and receive
text messages.
(j)
(h) "Unsolicited" means without the
recipient's express
permission. An e-mail or text message is not unsolicited if the
sender has a preexisting business or personal relationship with the
recipient. An e-mail or text message is not unsolicited if it was
received as a result of the recipient opting into a system in order
to receive promotional material.
Sec. 6a. (1) A person shall not send, or cause to be sent, an
unsolicited commercial text message to a resident of this state.
(2) Subsection (1) does not apply to either of the following:
(a) A commercial text message sent by a person that has a
preexisting business relationship with the resident if the resident
has agreed to receive commercial text messages from that person.
(b) A commercial text message sent by an affiliate of a
business that has a preexisting business relationship with the
resident, if the resident has agreed to receive commercial text
messages from affiliates of that business.
(3) A person that intentionally sends or causes to be sent an
unsolicited commercial text message to an individual who the person
knew or should have known is a resident of this state shall
establish a toll-free telephone number, a valid sender-operated
return text message number, or another easy-to-use electronic
method that the recipient of the commercial text message may call
or text to notify the sender not to transmit any further
unsolicited commercial text messages.
Sec. 7. (1) Except as otherwise provided under subsection (2),
a person who violates this act is guilty of a misdemeanor
punishable by imprisonment for not more than 1 year or a fine of
not more than $10,000.00, or both.
(2) A person who violates section 4 or violates this act in
the furtherance of another crime is guilty of a felony punishable
by imprisonment for not more than 4 years or a fine of not more
than $25,000.00, or both.
(3) Each commercial e-mail or text message sent in violation
of this act is a separate violation under this section.
(4) An e-mail or text message service provider does not
violate this act as a result of either of the following:
(a) Being an intermediary between the sender and recipient in
the transmission of an unsolicited commercial e-mail or text
message that violates this act.
(b)
Provides transmission of Transmitting
unsolicited
commercial e-mail or text messages over the provider's network or
facilities.
(5) It is prima facie evidence that the sender of an e-mail is
in violation of this section if the recipient is unable to contact
the sender through the return e-mail address provided by the sender
under section 3. It is prima facie evidence that the sender of a
text message is in violation of this section if the recipient is
unable to contact the sender through the return number provided by
the sender under section 6a.
(6) It is a defense to a case brought under this section or an
action under section 8 that the unsolicited commercial e-mail was
transmitted accidentally or as a result of a preexisting business
relationship or that the individual agreed to receive the
unsolicited commercial text message as provided in section 6a(2).
The burden of proving that the commercial e-mail was transmitted
accidentally or as a result of a preexisting business relationship
or that the individual agreed to receive the unsolicited commercial
text message as provided in section 6a(2) is on the sender.
Sec. 8. (1) A civil action may be brought by a person who
received an unsolicited commercial e-mail or text message in
violation of this act.
(2) A civil action may be brought by an e-mail or text message
service provider through whose facilities the unsolicited
commercial e-mail or text message was transmitted in violation of
this act.
(3) A civil action may be brought by the attorney general
against a person who has violated this act.
(4) In each action brought under this section, a recipient, an
e-mail or text message service provider, or the attorney general
may recover 1 of the following:
(a) Actual damages.
(b)
In lieu of actual damages, recover the lesser of the
following:
(i) $500.00 per unsolicited commercial e-mail or text message
received by the recipient or transmitted through the e-mail or text
message service provider.
(ii) $250,000.00 for each day that the violation occurs.
(5)
The A prevailing recipient or e-mail or text message
service provider shall be awarded actual costs and reasonable
attorney fees.