ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2627
(By Delegates Mahan, Coleman, Johnson,
Pino, Linch, Capito and Faircloth)
(Originating in the Committee on the Judiciary)
[February 8, 1999]
A BILL to amend chapter forty-six-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article six-g, relating to
mailing of certain unsolicited commercial electronic mail
messages as deceptive and unfair trade practices and
establishing prohibitions relating thereto; defining terms;
establishing that certain internet messages are prohibited
under this article; specifying contents of prohibited
messages; prohibiting misrepresenting or falsifying certain
information; requiring prior approval, certain disclosures or
preexisting relationships for certain messages activities;
authorizing interactive computer services to limit
transmissions of any commercial electronic mail which violates
this article; limiting liability of interactive computer
services for terminating service to persons that violate this article; and establishing a penalty for violations of this
article.
Be it enacted by the Legislature of West Virginia:
That chapter forty-six-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article six-g, to read as
follows:
Article 6G. ELECTRONIC MAIL PROTECTION ACT.
§46A-6G-1. Definitions.
As used in this article:
(1) "Commercial electronic mail message" means an electronic
mail message sent for the purpose of promoting property, goods, or
services for sale or lease.
(2) "Electronic mail address" means a destination, commonly
expressed as a string of characters, to which electronic mail may
be sent or delivered.
(3) "Initiate the transmission" means the action by the
original sender of an electronic mail message, not to the action by
any intervening interactive computer service that may handle or
retransmit the message.
(4) "Interactive computer service" means any information
service, system, or access software provider that provides or
enables the computer access by multiple users to a computer server,
including specifically a service or system that provides access to the internet.
(5) "Internet domain name" means 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.
(6) "Person" means any individual, corporation, partnership,
association, limited liability company or any other form or
business association.
§46A-6G-2. Limitations on unsolicited commercial electronic mail.
(a) The provisions of this article apply to any person who
initiates a commercial electronic mail message in violation of
subsection (b) of this section in which the person can discern
whether or not the intended recipient of a commercial electronic
mail message is a West Virginia resident, if that information is
available, upon request, from the registrant of the internet domain
name, which is provided in the recipient's electronic mail address,
and the sender initiates the transmission disregarding that it
constitutes a violation of this article.
(b) No person may initiate the transmission of a commercial
electronic mail message from a computer located in the state of
West Virginia or to an electronic mail address that the sender
knows, or has reason to know, is held by a West Virginia resident
that:
(1) Uses a third party's internet domain name without the
permission of the third party, or otherwise misrepresents any
information in identifying the point of origin or the transmission
path of a commercial electronic mail message;
(2) Contains false or misleading information in the subject
line;
(3) Does not clearly provide the date and time the message is
sent, the identity of the person sending the message, and the
return electronic mail address of that person;
(4) Lacks a preexisting and ongoing business or personal
relationship, unless the person receiving the message provides
express invitation or permission to accept electronic mail messages
from the person sending the message;
(5) Does not provide a toll-free telephone number or a valid
electronic mail address as a means of removal from a particular
electronic mailing list;
(6) Uses a third party's internet domain name without the
permission of the third party, or otherwise misrepresents any
information in identifying the point of origin or the transmission
path of a commercial electronic mail message;
(7) Contains "sexually explicit materials" which are defined
as a visual depiction, in actual or simulated form, or an explicit
description in a predominantly sexual context, nudity, human
genitalia, or any act of natural or unnatural sexual intercourse; or
(8) Contains false or misleading information in the subject
line.
§46A-6G-3. Interactive computer service authority; liability.
(1) An interactive computer service 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 article.
(2) An interactive computer service may disconnect or
terminate the service of person that is in violation of this
article.
(3) 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
which it reasonably believes is, or will be, sent in violation of
this article; nor will any interactive computer service be held
liable for any action voluntarily taken in good faith to disconnect
or terminate the service of any person that is in violation of this
article.
§46A-6G-4. Violations constitute violation of consumer protection
act.
Any violation of section two of this article constitutes an
unlawful act or practice under the provisions of article six,
section one hundred four of this chapter.
This article is new, therefore there are no underlining and
strike-throughs.