(A) As used in this section:
(1) "Advertisement" has the same
meaning as in section 4931.55 of the Revised Code.
(2) "Computer," "computer network,"
"computer program," "computer services," and "telecommunications device"
have the same meanings as in section 2913.01 of the Revised Code.
(3) "Electronic mail" means an
electronic message that is transmitted between two or more
telecommunications devices or electronic devices capable of receiving
electronic messages, whether or not the message is converted to hard copy
format after receipt, and whether or not the message is viewed upon the
transmission or stored for later retrieval. "Electronic mail" includes
electronic messages that are transmitted through a local, regional, or
global computer network.
(4) "Electronic mail advertisement"
means electronic mail containing an advertisement.
(5) "Electronic mail service provider"
means any person that is an intermediary in sending and receiving
electronic mail and that provides to users of electronic mail services
the ability to send or receive electronic mail. "Electronic mail service
provider" includes an internet service provider.
(6) "Internet" has the same meaning as
in section 341.42 of the Revised Code.
(7) "Originating address" means the
string of characters used to specify the source of any electronic mail
message.
(8) "Person" has the same meaning as in
section 1.59 of the Revised Code, but when a person is not an individual,
the person responsible for transmitting or causing to be transmitted an
electronic mail advertisement is the particular division of the
partnership, corporation, or other business entity actually responsible
for the transmission of the electronic mail advertisement.
(9) "Pre-existing business
relationship" means that there was a business transaction between the
initiator and the recipient of a commercial electronic mail message
during the five-year period preceding the receipt of that message. A
pre-existing business relationship includes a transaction involving the
free provision of information, goods, or services requested by the
recipient. A pre-existing business relationship does not exist after a
recipient requests to be removed from the distribution lists of an
initiator pursuant to division (B) of this section and a reasonable
amount of time has expired since that request.
(10) "Receiving address" means the
string of characters used to specify a recipient with each receiving
address creating a unique and separate recipient.
(11) "Recipient" means a person who
receives an electronic mail advertisement at any one of the following
receiving addresses:
(a) A receiving address furnished by
an electronic mail service provider that bills for furnishing and
maintaining that receiving address to a mailing address within this
state;
(b) A receiving address ordinarily
accessed from a computer located within this state;
(c) A receiving address ordinarily
accessed by a person domiciled within this state;
(d) Any other receiving address with
respect to which the obligations imposed by this section can be imposed
consistent with the United States Constitution.
(B)(1) Except as otherwise provided in
division (B)(3) of this section, a person that transmits or causes to be
transmitted to a recipient an electronic mail advertisement shall clearly
and conspicuously provide to the recipient, within the body of the
electronic mail advertisement, both of the following:
(a) The person's name and complete
residence or business address and the electronic mail address of the
person transmitting the electronic mail advertisement;
(b) A notice that the recipient may
decline to receive from the person transmitting or causing to be
transmitted the electronic mail advertisement any additional electronic
mail advertisements and a detailed procedure for declining to receive
any additional electronic mail advertisements at no cost. The notice
shall be of the same size of type as the majority of the text of the
message and shall not require that the recipient provide any
information other than the receiving address.
(2) If the recipient of an electronic
mail advertisement uses the procedure contained in the notice described
in division (B)(1)(b) of this section to decline to receive any
additional electronic mail advertisements, the person that transmitted or
caused to be transmitted the original electronic mail advertisement,
within a reasonable period of time, shall cease transmitting or causing
to be transmitted to the receiving address any additional electronic mail
advertisements.
(3) A person does not violate division
(B) of this section if the person transmits or causes to be transmitted
to the recipient an electronic mail advertisement when any of the
following apply:
(a) The person has a pre-existing
business or personal relationship with the recipient.
(b) The recipient has consented or
has agreed as a condition of service to receive the electronic mail
advertisement.
(c) The recipient receives the
electronic mail advertisement because another recipient forwarded the
advertisement to that recipient via an internet web site or another
recipient made a direct referral of that recipient to receive the
advertisement.
(C) No person shall use a computer, a
computer network, or the computer services of an electronic mail service
provider to transmit an electronic mail advertisement in contravention of
the authority granted by, or in violation of the policies related to
electronic mail advertisements set by, the electronic mail service provider
if the electronic mail service provider has provided the person notice of
those policies. For the purposes of this division, notice of those policies
shall be deemed sufficient if an electronic mail service provider maintains
an easily accessible web page containing its policies regarding electronic
mail advertisements and can demonstrate that notice was supplied via
electronic means between the sending and receiving computers.
(D) No electronic mail service provider
shall be liable for transmitting another person's electronic mail
advertisement through its service in violation of this section, or shall be
liable for any action it voluntarily takes in good faith to block the
receipt or transmission through its service of any electronic mail
advertisement that it believes is, or will be sent, in violation of this
section.
(E) A recipient of an electronic mail
advertisement transmitted in violation of division (B) of this section may
bring a civil action against a person who transmitted that advertisement or
caused it to be transmitted. In that action, the recipient may recover the
following:
(1) One
hundred dollars for each violation, not to exceed a total of
fifty thousand dollars;
(2) Reasonable
attorney's fees, court costs, and other costs of bringing the
action.
(F) An electronic mail service provider
whose authority or policy has been contravened in violation of division (C)
of this section may bring a civil action against a person who transmitted
that advertisement or caused it to be transmitted. In that action, the
electronic mail service provider may recover the following:
(1)(a) Fifty dollars for each
violation of division (C) of this section, not to exceed fifty thousand
dollars;
(b) If a violation of division (C) of
this section is a willful or knowing violation, the court may increase
the amount recoverable to an amount not to exceed five hundred thousand
dollars.
(c) If a violation of division (C) of
this section is accompanied by a violation of division (H) of this
section, there shall be no limit on the amount that may be recovered
pursuant to this section.
(2) Reasonable attorney's fees, court
costs, and other costs of bringing the action.
(G) In addition to any recovery that is
allowed under divisions (E) or (F) of this section, the recipient of an
electronic mail advertisement transmitted in violation of division (B) of
this section or the electronic mail service provider of an advertisement
transmitted in violation of division (C) of this section may apply to the
court of common pleas of the county in which the recipient resides or the
service provider is located for an order enjoining the person who
transmitted or caused to be transmitted that electronic mail advertisement
from transmitting or causing to be transmitted to the recipient any
additional electronic mail advertisement.
(H) No person shall use a computer, a
computer network, a computer program, or the computer services of an
electronic mail service provider with the intent to forge an originating
address or other routing information, in any manner, in connection with the
transmission of an electronic mail advertisement through or into the
network of an electronic mail service provider or its subscribers. Each use
of a computer, a computer network, a computer program, or the computer
services of an electronic mail service provider in violation of this
division constitutes a separate offense. A person
who violates this division is guilty of forgery under section 2913.31 of
the Revised Code.
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