AB 2546: Commercial email advertisements.

Existing law prohibits a person or entity from initiating or advertising in unsolicited commercial email advertisements and places other restrictions related to that activity. Existing law defines the term commercial email advertisement for purposes of those provisions to mean an electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of property, goods, services, or extension of credit. Existing law defines the term unsolicited commercial email advertisement for purposes of those provisions to exclude a commercial email advertisement sent to a recipient who has a preexisting or current relationship with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit. Existing law further defines the term preexisting or current business relationship to mean that the recipient has made an inquiry and has provided his or her email address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser.

This bill would expand the definition of commercial email advertisement to include an electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, promotion, or other disposition of stocks, bonds, sweepstakes, insurance, employment opportunities, or any other solicitation, excluding charitable or political solicitations. The bill would expand the definition of preexisting or current business relationship to include situations in which the recipient has made an inquiry and has provided his or her email address or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by a commonly branded company of the advertiser.

Existing law prohibits a person or entity from advertising in a commercial email advertisement sent from California or to a California email address in certain circumstances, including if the email advertisement contains or is accompanied by falsified, misrepresented, or forged header information or by a 3rd-partys domain name without the permission of the 3rd party. Existing law makes a violation of that prohibition a misdemeanor.

This bill would also make it unlawful for a person or entity to initiate or advertise in a commercial email advertisement sent from California or to a California email address in the above-described circumstances. The bill would expand the prohibition on the advertisement containing a 3rd-partys domain name to also apply to the 3rd-partys email address, but the bill would specify that this prohibition does not affect comparative advertising that references names, user names, domain names, or email addresses. This bill would also prohibit the body of the advertisement from containing a falsified or misrepresented postal address of the advertiser or initiator, a falsified or misrepresented business name, as specified, of the advertiser or initiator, or a falsified or misrepresented unsubscribe link, as specified. By expanding the scope of a crime, the bill would impose a state-mandated local program.

Existing law authorizes the Attorney General, the recipient of an unsolicited commercial email advertisement, and an electronic mail service provider to bring an action against a person or entity that violates those provisions to recover, among other things, liquidated damages and reasonable attorneys fees. Existing law requires the court to reduce liquidated damages, as specified, if the court finds that the defendant established and implemented practices and procedures reasonably designed to effectively prevent unsolicited commercial email advertisements that are in violation of existing law.

This bill would also authorize a district attorney, city attorney, or the recipient of an unsolicited commercial email advertisement, as specified, to bring an action under these provisions and would authorize a court to enter an order enjoining violations of those provisions. The bill would add to the findings that the court must make in order to reduce liquidated damages to include, among other things, a finding that the defendant provided its personnel with training regarding practices and procedures designed to effectively prevent the emails prohibited under the bills provisions. The bill would authorize a prevailing recipient, electronic mail service provider, the Attorney General, district attorney, or city attorney to recover reasonable attorneys fees as costs in addition to other allowable costs.

Existing law sets forth findings and declarations of the Legislature relating to unsolicited commercial email advertisements.

This bill would revise the findings and declarations of the Legislature regarding regulation of commercial email advertisements and would make other related changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.