On August 1, 2002 the Governor signed Senate Bill 8 (the "Act") into law. The Act is designed to regulate the transmission of e-mail advertisements. The Act is effective as of November 1, 2002 and is codified in Section 2307.64 of the Revised Code.
The Act states generally that e-mail transmissions must include the sender's name, business or residential address and e-mail address, and notice that the recipient may opt-out from receiving further e-mail advertisements at no cost by following a detailed procedure. In addition, the sender may not forge, or attempt to forge, the originating address or it may be subject to criminal prosecution under Sections 2307.64(H) and 2913.31.
The Act requires that if a recipient declines to receive additional e-mail, the entity responsible for transmitting or causing the transmission of the e-mail advertisement must cease transmitting additional advertisements within a reasonable time. The Act includes three exceptions when the regulations will not apply: (1) if the sender and recipient have a preexisting business or personal relationship; (2) if the recipient has previously consented to receipt of the e-mail transmissions; or (3) if the recipient receives the advertisement because another recipient forwarded the same or directly referred the recipient to receive the same.
The Act prohibits any use of a computer, a computer network, or the computer services of an e-mail provider to transmit an e-mail advertisement in contravention of the established policies of a service provider. The e-mail service provider is indemnified from liability for transmitting another person's e-mail advertisement that violates the Act's provisions. In addition, the e-mail service provider is not liable for any action it voluntarily takes in good faith to block the receipt or transmission of an e-mail advertisement that it believes is in violation of the Act.
Should the sender fail to stop sending the e-mail advertisements, the recipient is entitled to damages in the form of $100 per e-mail transmission, not to exceed $50,000, and reasonable attorney's fees and court costs. In addition, a service provider whose policies are violated is entitled to damages in the form of $50 for each violation, not to exceed $50,000, and reasonable attorney's fees and court costs. If the violation was willful or knowing, the court may increase the damages up to $500,000. If the violation is accompanied by the forging of an originating address or other routing information, there is no limit on the amount that may be recovered. The recipient also may apply to the court of common pleas in the county in which the recipient resides or the e-mail service provider is located for a court order enjoining future e-mail advertisements from the sender.
The Act balances concerns that it is an attempt to regulate interstate commerce and is an infringement on freedom of speech with considerations that it a necessary step in eliminating unwanted and unsolicited e-mail advertisements.
For more information about the Act, visit the Legislative Service Commission's Website at www.legislature.state.oh.us/bills.cfm?ID=124_SB_8.
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