ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2627
(By Delegates Mahan, Coleman, Johnson,
Pino, Linch, Capito and Faircloth)
[Passed March 13, 1999; in effect ninety days from passage.]
AN ACT 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 electronic mail messages 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 for
certain messages activities; authorizing interactive computer
services to limit transmissions of any bulk 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) "Bulk electronic mail message" means an electronic mail
message sent in bulk to users of an interactive computer service
who have not requested or solicited the message. Unauthorized for
purposes of a bulk electronic mail message, means a bulk electronic
mail message sent in quantity in contravention of the authorization
granted by or in violation of the policies or contractual rights of
the electronic mail service provider.
(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 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 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 unauthorized electronic mail.
No person may initiate the transmission of an unauthorized
electronic mail message with the intent to deceive and defraud, or
a bulk 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; or
(4) Contains "sexually explicit materials" which are defined
as a visual depiction, in actual or simulated form, or an explicit
description in a predominately sexual context, nudity, human
genitalia, or any act of natural or unnatural sexual intercourse.
§46A-6G-3. Interactive computer service authority; liability.
(1) An interactive computer service may block the receipt or
transmission through its service of any bulk 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 any 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 bulk 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.
(4) No interactive computer service or public utility will be
liable for merely transmitting a bulk electronic mail message on
its network.
§46A-6G-4. Sale or possession of enabling software prohibited.
No person may sell, give or otherwise distribute or possess
with the intent to sell, give or distribute software that:
(1) Is primarily designed or produced for the purpose of
facilitating or enabling the falsification of electronic mail
transmission information or other routing information;
(2) Has only a limited commercially significant purpose or use
other than to facilitate or enable the falsification of electronic
mail transmission information or other routing information; or
(3) That is marketed by that person or another acting in
concert with that person with that person's knowledge for use in
facilitating or enabling the falsification of electronic mail transmission information or other routing information.
§46A-6G-5. Violations; right of action for injunction, damages.
(a) No person or organization may initiate an unauthorized
bulk electronic mail message in violation of this article.
(b) A recipient of an unauthorized bulk electronic mail
message
in violation of this article may bring an action to recover
actual damages for any injury sustained by the receipt of an
unauthorized bulk electronic mail message
. In lieu of actual
damages, a minimum damage assessment of one thousand dollars may be
recovered for violations of this article. Punitive damages may be
awarded for the willful failure to cease initiating unauthorized
bulk electronic mail messages
. Court costs and reasonable attorney
fees may be awarded for violations of this article.
(c) A recipient of an unauthorized bulk electronic mail
message
initiated in violation of this article may bring an action
to enjoin the initiator from sending any further unauthorized bulk
electronic mail message
s
. Any court costs or other costs incident
to such action including reasonable attorney fees may be awarded.
(d) Initiating an unauthorized bulk electronic mail message to
any computer or computer network located in this state shall
constitute an act in the state for the purposes of
section thirty-
three, article three, chapter fifty-six of this code.
(e) Any interactive computer service provider or public
utility whose property or person is injured by any violation of
this article may bring an action to recover for any damages
sustained, including, but not limited to, loss of profits. In
addition, court costs and attorney fees may be recovered. The
service provider may elect, in lieu of actual damages, to recover
ten dollars for each and every unauthorized bulk electronic mail
message transmitted in violation of this article, or twenty-five
thousand dollars per day, whichever is greater.
(f) The provisions of this section shall not be construed to
limit any person's right to pursue any additional civil remedy
otherwise allowed by law.