72nd OREGON LEGISLATIVE ASSEMBLY
2003 Regular Session,
Chapter 759
(S.B. 910 (2003), approved September 17, 2003)*
AN ACT
Relating to electronic mail messages; creating new provisions;
and amending ORS 646.607.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The Legislative Assembly finds:
(a) The economic harm and invasion of privacy resulting from
the transmission and receipt of unsolicited commercial electronic
mail messages constitute a threat to the welfare of the people of
this state.
(b) Unsolicited commercial electronic mail messages cost
Oregonians hundreds of thousands of dollars each year because of:
(A) The need to acquire additional capacity for computer
systems;
(B) The need to acquire software programs to filter and control
unsolicited commercial electronic mail messages;
(C) The transmission of computer viruses by unsolicited
commercial electronic mail messages; and
(D) Time and productivity lost when businesses and public
bodies must devote personnel resources:
(i) To creating and maintaining local electronic mail message
filters;
(ii) To removing infestations of unsolicited commercial
electronic mail messages from networks and individual mailboxes;
(iii) To unclogging transmission paths; and
(iv) To repairing and restarting computer systems that have
experienced resulting system failures.
(c) Unsolicited commercial electronic mail messages can be used
to transmit pornographic material in a manner that is not readily
apparent to recipients, which can result in the exposure of
minors to pornographic material.
(d) Existing state and federal laws are inadequate to prevent
the harm to the public welfare that results from the transmission
and receipt of unsolicited commercial electronic mail messages.
(e) Requiring persons that transmit unsolicited commercial
electronic mail messages to label the messages in a manner
readily recognizable by a recipient will enable recipients to
recognize unsolicited commercial electronic mail messages and
choose whether to avoid receiving or reading the messages.
(2) The purpose of sections 3 (2) and 4 of this 2003 Act is to
prevent the harmful effects set forth in subsection (1)(b) and
(c) of this section, which result from the receipt of unsolicited
electronic mail messages that are not labeled in a manner readily
recognizable by a recipient as unsolicited electronic mail
messages. Requiring persons that transmit unsolicited electronic
mail messages to label the messages as set forth in section 4 of
this 2003 Act enables recipients of unsolicited electronic mail
messages to recognize and choose whether to avoid receiving and
reading the messages. + }
SECTION 2. { + As used in sections 1 to 8 of this 2003 Act:
(1) 'Business relationship' means a voluntary exchange of
communication initiated by an electronic mail message recipient's
inquiry about, application for or purchase or use of real estate,
goods or services.
(2) 'Commercial electronic mail message' means an electronic
mail message transmitted for the purpose of encouraging the
purchase, rental or investment in real estate, goods or services.
(3) 'Control' has the meaning given that term in ORS 60.825.
(4) 'Domain name' means an alphanumeric designation that is
registered with or assigned by a domain name registrar as part of
an electronic address on the Internet.
(5) 'Electronic mail message' means an electronic message or
computer file that contains an image of a message transmitted
between computers or electronic terminals. 'Electronic mail
message' does not include a document transmitted by a facsimile
machine as defined in ORS 646.872.
(6) 'Electronic mail service provider' means a person that
provides:
(a) An end user with electronic mail message services,
including the ability to send or receive electronic mail
messages; and
(b) A system that connects the user to a computer server and
the Internet.
(7) 'Person' has the meaning given that term in ORS 646.605.
(8) 'Subsidiary' means a person that directly, or indirectly
through one or more intermediaries, is controlled by, or is under
common control with, another person.
(9) 'Unsolicited commercial electronic mail message' means a
commercial electronic mail message transmitted without the
consent of the recipient. + }
SECTION 3. { + In the course of offering real estate, goods or
services for sale, rent or other disposition, a person may not:
(1) Transmit, ask another person to transmit or assist in the
transmission of an electronic mail message that:
(a) Uses an Internet domain name without permission of the
person that holds the license to use the name;
(b) Contains false or misleading information in the subject
line; or
(c) Misrepresents or hinders a person from determining the
point of origin or transmission path of the electronic mail
message.
(2) Transmit, ask a person to transmit or assist in the
transmission of an unsolicited commercial electronic mail message
to a person in this state. + }
SECTION 4. { + (1) Section 3 (2) of this 2003 Act does not
apply if:
(a) The person that transmits the electronic mail message:
(A) Has established a business relationship with the person
that receives the electronic mail message; + }
{ + (B)(i) Controls the person that established the business
relationship; and
(ii) Offers to the person that receives the electronic mail
message real estate, goods or services offered by the person that
established the business relationship;
(C)(i) Is a subsidiary of the person that established the
business relationship;
(ii) Shares the principal name of the person that established
the business relationship;
(iii) Is located on the same premises as the person that
established the business relationship; and
(iv) Offers to the person that receives the electronic mail
message real estate, goods or services offered by the person that
established the business relationship;
(D) Is an organization and the electronic mail message is
solely to communicate with a member, employee or contractor of
the organization; or
(E) Labels the message by including in the subject line the
term 'ADV:' in a type size readily visible to the recipient. The
label shall immediately follow the colon after the word '
subject' or some abbreviation of the word 'subject'; or
(b) The predecessor of the person that transmits the electronic
mail message had a business relationship with the person that
receives the electronic mail message.
(2) Section 3 of this 2003 Act does not apply to an electronic
mail service provider acting only as an intermediary between the
persons that transmit and receive the electronic mail
message. + }
SECTION 5. { + (1) A person whose Internet domain name is used
without permission in violation of section 3 (1)(a) of this 2003
Act may bring an action against the person that violated section
3 (1)(a) of this 2003 Act to recover actual damages or liquidated
damages of $500, whichever is greater.
(2) A person that receives an electronic mail message
transmitted in violation of section 3 (1)(b) or (c) of this 2003
Act may bring an action against the person that violated section
3 (1)(b) or (c) of this 2003 Act to recover actual damages or
liquidated damages of $500, whichever is greater.
(3) A person that receives an electronic mail message
transmitted in violation of section 3 (2) of this 2003 Act may
bring an action against the person that violated section 3 (2) of
this 2003 Act to recover actual damages or liquidated damages of
$200, whichever is greater.
(4) The remedies provided by subsections (1) to (3) of this
section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to
recover liquidated damages in lieu of actual damages, the court
may not award the person more than $25,000 per day.
(5) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
(6)(a) A person who is an individual may bring the action in
the circuit court of the county in which the individual resides.
(b) A person that is not an individual may bring the action in
the circuit court of a county in which the person maintains an
office.
(7) The court may award reasonable attorney fees to a plaintiff
that prevails in an action on a claim under this section.
(8) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this
state. + }
SECTION 6. { + (1) An electronic mail service provider whose
service is used by a person to transmit an electronic mail
message in violation of section 3 (1) of this 2003 Act may bring
an action against the person that violated section 3 (1) of this
2003 Act to recover actual damages or liquidated damages of
$1,000, whichever is greater.
(2) An electronic mail service provider whose service is used
by a person to transmit an electronic mail message in violation
of section 3 (2) of this 2003 Act may bring an action against the
person that violated section 3 (2) of this 2003 Act to recover
actual damages or liquidated damages of $1,000, whichever is
greater.
(3) The remedies provided by subsections (1) and (2) of this
section apply to each electronic mail message transmitted in
violation of section 3 of this 2003 Act. If the person elects to
recover liquidated damages in lieu of actual damages, the court
may not award the person more than $25,000 per day.
(4) An award of liquidated damages on a claim under this
section is not subject to ORS 18.535, 18.537 or 18.540.
(5) The electronic mail service provider may bring the action
in the circuit court of a county in which:
(a) The provider maintains an office; or
(b) The person that violated section 3 of this 2003 Act has
sufficient contacts for the court to exercise personal
jurisdiction over the person.
(6) The court may award reasonable attorney fees to an
electronic mail service provider that prevails in an action on a
claim under this section.
(7) The remedies provided in this section are in addition to
and not exclusive of any other remedy provided by law of this
state. + }
SECTION 7. { + If an electronic mail service provider acts in
good faith to block the receipt, or transmission through the
provider's service, of electronic mail messages that the provider
anticipates persons will transmit in violation of section 3 of
this 2003 Act, a court may not, for blocking receipt or
transmission of the electronic mail messages, find the provider
to be in violation of section 3 of this 2003 Act. + }
SECTION 8. { + Notwithstanding ORCP 32, a court may not order
an action to be maintained as a class action if the action
includes a claim under section 5 of this 2003 Act and the person
against which the claim is asserted had, at the time of the
transmission of the electronic mail message that forms the basis
of the claim, established a business relationship with the person
that received the message. + }
SECTION 9. ORS 646.607 is amended to read:
646.607. A person engages in an unlawful practice when in the
course of the person's business, vocation or occupation the
person:
(1) Employs any unconscionable tactic in connection with sale,
rental or other disposition of real estate, goods or services, or
collection or enforcement of an obligation; { - or - }
{ + (2) Violates section 3 of this 2003 Act; or + }
{ - (2) - } { + (3) + }Fails to deliver all or any portion
of real estate, goods or services as promised, and upon request
of the customer, fails to refund any money { - which - }
{ + that + }has been received from the customer { - which - }
{ + that + }was for the purchase of the undelivered real
estate, goods or services and { - which - } { + that + }is
not retained by the seller pursuant to any right, claim or
defense asserted in good faith. This subsection does not create a
warranty obligation and
{ - shall - } { + does + }not apply to a dispute over the
quality of real estate, goods or services delivered to a
customer.
SECTION 10. ORS 646.607, as amended by section 9 of this 2003
Act, is amended to read:
646.607. A person engages in an unlawful practice when in the
course of the person's business, vocation or occupation the
person:
(1) Employs any unconscionable tactic in connection with sale,
rental or other disposition of real estate, goods or services, or
collection or enforcement of an obligation; { + or + }
{ - (2) Violates section 3 of this 2003 Act; or - }
{ - (3) - } { + (2) + } Fails to deliver all or any portion
of real estate, goods or services as promised, and upon request
of the customer, fails to refund any money that has been received
from the customer that was for the purchase of the undelivered
real estate, goods or services and that is not retained by the
seller pursuant to any right, claim or defense asserted in good
faith. This subsection does not create a warranty obligation and
does not apply to a dispute over the quality of real estate,
goods or services delivered to a customer.
SECTION 11. { + (1) Section 3 of this 2003 Act applies to
transmissions of electronic mail messages occurring on or after
March 1, 2004.
(2) Sections 5 and 6 of this 2003 Act and the amendments to ORS
646.607 by section 9 of this 2003 Act apply to violations
occurring on or after March 1, 2004. + }
SECTION 12. { + The amendments to ORS 646.607 by section 10 of
this 2003 Act become operative on January 2, 2006. + }
SECTION 13. { + Sections 1 to 8 and 11 of this 2003 Act are
repealed on January 2, 2006. + }
* The temporary provisions relating to electronic mail in this Act
are effective until January 2, 2006, and appear in the Oregon Revised Statutes
as notes following § 646.578.
