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H.B. 143 Enrolled
This act enacts provisions imposing requirements on persons who send unsolicited sexually
explicit email. The act provides for a cause of action in favor of those who receive an
unsolicited sexually explicit email that violates those requirements. The act provides a
criminal penalty for a violation of those requirements. This act provides a coordination
clause.
This act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
13-34-101, Utah Code Annotated 1953
13-34-102, Utah Code Annotated 1953
13-34-103, Utah Code Annotated 1953
13-34-104, Utah Code Annotated 1953
13-34-105, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 13-34-101 is enacted to read:
13-34-101. Title.
This chapter is known as the "Unsolicited Sexually Explicit Email Act."
Section 2. Section 13-34-102 is enacted to read:
13-34-102. Definitions.
As used in this chapter:
(1) "Computer network" means two or more computers that are interconnected to exchange
electronic messages, files, data, or other information.
(2) "Email" means an electronic message, file, data, or other information that is
transmitted:
(a) between two or more computers, computer networks, or electronic terminals; or
(b) within a computer network.
(3) "Email address" means a destination, commonly expressed as a string of characters, to
which email may be sent or delivered.
(4) "Email service provider" means a person that:
(a) is an intermediary in the transmission of email from the sender to the recipient; or
(b) provides to end users of email service the ability to send and receive email.
(5) "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.
(6) "Sexually explicit email" means an email that contains, promotes, or contains an
electronic link to material that is harmful to minors, as defined in Section 76-10-1201 .
(7) "Unsolicited" means without the recipient's express permission.
Section 3. Section 13-34-103 is enacted to read:
13-34-103. Unsolicited sexually explicit email -- Requirements.
(1) Each person who sends or causes to be sent an unsolicited sexually explicit email through
the intermediary of an email service provider located in the state or to an email address held by a
resident of the state shall:
(a) conspicuously state in the email the sender's:
(i) legal name;
(ii) correct street address; and
(iii) valid Internet domain name;
(b) include in the email a subject line that contains "ADV:ADULT" as the first nine
characters;
(c) provide the recipient a convenient, no-cost mechanism to notify the sender not to send
any future email to the recipient, including:
(i) return email to a valid, functioning return electronic address; and
(ii) if the sender has a toll-free telephone number, the sender's toll-free telephone number;
and
(d) conspicuously provide in the text of the email a notice that:
(i) informs the recipient that the recipient may conveniently and at no cost be excluded from
future sexually explicit email from the sender; and
(ii) if the sender has a toll-free telephone number, includes the sender's valid, toll-free
telephone number that the recipient may call to be excluded from future email from the sender.
(2) A person who sends or causes to be sent an unsolicited sexually explicit email through
the intermediary of an email service provider located in the state or to an email address held by a
resident of the state may not:
(a) use a third party's Internet domain name in identifying the point of origin or in stating the
transmission path of the email without the third party's consent;
(b) misrepresent any information in identifying the point of origin or the transmission path
of the email; or
(c) fail to include in the email the information necessary to identify the point of origin of the
email.
(3) If the recipient of an unsolicited sexually explicit email notifies the sender that the
recipient does not want to receive future sexually explicit email from the sender, the sender may not
send that recipient a sexually explicit email either directly or through a subsidiary or affiliate.
(4) An email service provider does not violate this section solely by being an intermediary
between the sender and recipient in the transmission of an email that violates this section.
Section 4. Section 13-34-104 is enacted to read:
13-34-104. Criminal penalty.
(1) A person who violates any requirement of Section 13-34-103 is guilty of a class B
misdemeanor.
(2) A criminal conviction or a penalty assessed as a result of a criminal conviction under
Subsection (1) does not relieve the person convicted or assessed from civil liability in an action
under Section 13-34-105 .
Section 5. Section 13-34-105 is enacted to read:
13-34-105. Civil action for violation -- Election on damages -- Costs and attorney fees.
(1) For any violation of a provision of Section 13-34-103 , an action may be brought by:
(a) a person who received the unsolicited sexually explicit email with respect to which the
violation under Section 13-34-103 occurred; or
(b) an email service provider through whose facilities the unsolicited sexually explicit email
was transmitted.
(2) In each action under Subsection (1):
(a) a recipient or email service provider may:
(i) recover actual damages; or
(ii) elect, in lieu of actual damages, to recover the lesser of:
(A) $10 per unsolicited sexually explicit email received by the recipient or transmitted
through the email service provider; or
(B) $25,000 per day that the violation occurs; and
(b) each prevailing recipient or email service provider shall be awarded costs and reasonable
attorney fees.
(3) It is a defense to an action brought under this section that the unsolicited sexually explicit
email was transmitted accidentally.
(4) The violation of Section 13-34-103 by an employee does not subject the employee's
employer to liability under that section if the employee's violation of Section 13-34-103 is also a
violation of an established policy of the employer that requires compliance with the requirements
of Section 13-34-103 .
Section 6. Coordination clause.
If this bill and 3rd Substitute H.B. 80, Unsolicited Commercial Email, both pass, it is the
intent of the Legislature that the provisions enacted under both bills be combined into Title 13,
Chapter 34 to read as follows:
"Section 1. Section 13-34-101 is enacted to read:
13-34-101. Title.
This chapter is known as the "Unsolicited Commercial and Sexually Explicit Email Act."
Section 2. Section 13-34-102 is enacted to read:
13-34-102. Definitions.
As used in this chapter:
(1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of goods,
services, or real property.
(2) "Computer network" means two or more computers that are interconnected to exchange
electronic messages, files, data, or other information.
(3) "Email" means an electronic message, file, data, or other information that is transmitted:
(a) between two or more computers, computer networks, or electronic terminals; or
(b) within a computer network.
(4) "Email address" means a destination, commonly expressed as a string of characters, to
which email may be sent or delivered.
(5) "Email service provider" means a person that:
(a) is an intermediary in the transmission of email from the sender to the recipient; or
(b) provides to end users of email service the ability to send and receive email.
(6) "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.
(7) (a) "Sexually explicit email" means an email that contains, promotes, or contains an
electronic link to material that is harmful to minors, as defined in Section 76-10-1201 .
(b) An email is a "sexually explicit email" if it meets the definition in Subsection (7)(a), even
if the email also meets the definition of a commercial email.
(8) (a) "Unsolicited" means without the recipient's express permission, except as provided
in Subsection (8)(b).
(b) A commercial email is not "unsolicited" if the sender has a preexisting business or
personal relationship with the recipient.
Section 3. Section 13-34-103 is enacted to read:
13-34-103. Unsolicited commercial or sexually explicit email -- Requirements.
(1) Each person who sends or causes to be sent an unsolicited commercial email or an
unsolicited sexually explicit email through the intermediary of an email service provider located in
the state or to an email address held by a resident of the state shall:
(a) conspicuously state in the email the sender's:
(i) legal name;
(ii) correct street address; and
(iii) valid Internet domain name;
(b) include in the email a subject line that contains:
(i) for a commercial email, "ADV:" as the first four characters; or
(ii) for a sexually explicit email, "ADV:ADULT" as the first nine characters;
(c) provide the recipient a convenient, no-cost mechanism to notify the sender not to send
any future email to the recipient, including:
(i) return email to a valid, functioning return electronic address; and
(ii) for a sexually explicit email and if the sender has a toll-free telephone number, the
sender's toll-free telephone number; and
(d) conspicuously provide in the text of the email a notice that:
(i) informs the recipient that the recipient may conveniently and at no cost be excluded from
future commercial or sexually explicit email, as the case may be, from the sender; and
(ii) for a sexually explicit email and if the sender has a toll-free telephone number, includes
the sender's valid, toll-free telephone number that the recipient may call to be excluded from future
email from the sender.
(2) A person who sends or causes to be sent an unsolicited commercial email or an
unsolicited sexually explicit email through the intermediary of an email service provider located in
the state or to an email address held by a resident of the state may not:
(a) use a third party's Internet domain name in identifying the point of origin or in stating the
transmission path of the email without the third party's consent;
(b) misrepresent any information in identifying the point of origin or the transmission path
of the email; or
(c) fail to include in the email the information necessary to identify the point of origin of the
email.
(3) If the recipient of an unsolicited commercial email or an unsolicited sexually explicit
email notifies the sender that the recipient does not want to receive future commercial email or future
sexually explicit email, respectively, from the sender, the sender may not send that recipient a
commercial email or a sexually explicit email, as the case may be, either directly or through a
subsidiary or affiliate.
Section 4. Section 13-34-104 is enacted to read:
13-34-104. Criminal penalty.
(1) A person who violates any requirement of Section 13-34-103 with respect to an
unsolicited sexually explicit email is guilty of a class B misdemeanor.
(2) A criminal conviction or a penalty assessed as a result of a criminal conviction under
Subsection (1) does not relieve the person convicted or assessed from civil liability in an action
under Section 13-34-105 .
Section 5. Section 13-34-105 is enacted to read:
13-34-105. Civil action for violation -- Election on damages -- Costs and attorney fees
-- Defense.
(1) For any violation of a provision of Section 13-34-103 , an action may be brought by:
(a) a person who received the unsolicited commercial email or unsolicited sexually explicit
email with respect to which the violation under Section 13-34-103 occurred; or
(b) an email service provider through whose facilities the unsolicited commercial email or
unsolicited sexually explicit email was transmitted.
(2) In each action under Subsection (1):
(a) a recipient or email service provider may:
(i) recover actual damages; or
(ii) elect, in lieu of actual damages, to recover the lesser of:
(A) $10 per unsolicited commercial email or unsolicited sexually explicit email received by
the recipient or transmitted through the email service provider; or
(B) $25,000 per day that the violation occurs; and
(b) each prevailing recipient or email service provider shall be awarded costs and reasonable
attorney fees.
(3) An email service provider does not violate Section 13-34-103 solely by being an
intermediary between the sender and recipient in the transmission of an email that violates that
section.
(4) The violation of Section 13-34-103 by an employee does not subject the employee's
employer to liability under that section if the employee's violation of Section 13-34-103 is also a
violation of an established policy of the employer that requires compliance with the requirements
of Section 13-34-103 .
(5) It is a defense to an action brought under this section that the unsolicited commercial
email or unsolicited sexually explicit email was transmitted accidentally."
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