CHAPTER 321. REGULATION OF CERTAIN ELECTRONIC MAIL
BUSINESS AND COMMERCE CODE
TITLE 10. USE OF TELECOMMUNICATIONS
SUBTITLE B. ELECTRONIC COMMUNICATIONS
CHAPTER 321. REGULATION OF CERTAIN ELECTRONIC MAIL
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 321.001. DEFINITIONS. In this chapter:
(1) "Commercial electronic mail message" means an electronic
mail message that advertises, offers for sale or lease, or
promotes any goods, services, business opportunity, property, or
other article, commodity, or thing of value.
(2) "Electronic mail" means a message, file, or other
information that is transmitted through a local, regional, or
global computer network, regardless of whether the message, file,
or information is viewed, stored for retrieval at a later time,
printed, or filtered by a computer program that is designed or
intended to filter or screen the message, file, or information.
(3) "Electronic mail service provider" means a person who:
(A) is authorized to transact business in this state;
(B) is an intermediary in transmitting or receiving electronic
mail; and
(C) provides to an end user of an electronic mail service the
ability to transmit or receive electronic mail.
(4) "Established business relationship" means a relationship
that:
(A) is formed by a voluntary two-way communication between a
person and another person, regardless of whether consideration is
exchanged;
(B) pertains to a product or service offered by one of the
persons; and
(C) has not been terminated by either person.
(5) "Obscene" has the meaning assigned by Section 43.21, Penal
Code.
(6) "Sender" means a person who initiates an electronic mail
message.
(7) "Sexual conduct" has the meaning assigned by Section 43.25,
Penal Code.
(8) "Unsolicited commercial electronic mail message" means a
commercial electronic mail message transmitted without the
consent of the recipient by a person with whom the recipient does
not have an established business relationship. The term does not
include electronic mail transmitted by an organization using
electronic mail to communicate exclusively with members,
employees, or contractors of the organization.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER B. PROHIBITED AND REQUIRED CONDUCT
Sec. 321.051. TRANSMISSION OF CERTAIN COMMERCIAL ELECTRONIC MAIL
MESSAGES PROHIBITED. (a) In this section, "Internet domain
name" means a globally unique, hierarchical reference to an
Internet host or service that is:
(1) assigned through a centralized Internet naming authority;
and
(2) composed of a series of character strings separated by
periods, with the right-most string specifying the top of the
hierarchy.
(b) A person may not intentionally transmit a commercial
electronic mail message that:
(1) is an unsolicited commercial electronic mail message and
falsifies the electronic mail transmission or routing
information;
(2) contains false, deceptive, or misleading information in the
subject line; or
(3) uses another person's Internet domain name without the other
person's consent.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.052. REQUIREMENT FOR TRANSMISSION OF UNSOLICITED
COMMERCIAL ELECTRONIC MAIL MESSAGES. (a) A person may not
intentionally take an action to transmit an unsolicited
commercial electronic mail message unless:
(1) "ADV:" appears first in the subject line of the message or,
if the message contains obscene material or material depicting
sexual conduct, "ADV: ADULT ADVERTISEMENT" appears first in the
subject line; and
(2) the sender or a person acting on behalf of the sender
provides a functioning return electronic mail address to which a
recipient of the message may, at no cost to the recipient, send a
reply requesting the removal of the recipient's electronic mail
address from the sender's electronic mail list.
(b) A sender shall remove a person's electronic mail address
from the sender's electronic mail list not later than the third
day after the date the sender receives a request for removal of
that address under Subsection (a)(2).
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.053. SELLING OR PROVIDING CERTAIN ELECTRONIC MAIL
ADDRESSES PROHIBITED. A sender or a person acting on behalf of a
sender may not sell or otherwise provide to another the
electronic mail address of a person who requests the removal of
that address from the sender's electronic mail list as provided
by Section 321.052(a)(2), except as required by other law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
SUBCHAPTER C. ENFORCEMENT
Sec. 321.101. TRANSMISSION OF MESSAGE CONTAINING OBSCENE
MATERIAL OR MATERIAL DEPICTING SEXUAL CONDUCT; CRIMINAL PENALTY.
(a) A person commits an offense if the person intentionally
takes an action to transmit a message that contains obscene
material or material depicting sexual conduct in violation of
Section 321.052(a)(1).
(b) An offense under this section is a Class B misdemeanor.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.102. VIOLATION OF CHAPTER: GENERAL CIVIL PENALTY AND
INJUNCTIVE RELIEF. (a) A person who violates this chapter is
liable to this state for a civil penalty in an amount not to
exceed the lesser of:
(1) $10 for each unlawful message or unlawful action; or
(2) $25,000 for each day an unlawful message is received or each
day an unlawful action is taken.
(b) The attorney general or a prosecuting attorney in the county
in which the violation occurs may:
(1) bring an action to recover the civil penalty; and
(2) obtain an injunction to prevent or restrain a violation of
this chapter.
(c) The attorney general or prosecuting attorney may recover
reasonable expenses incurred in recovering the civil penalty,
including court costs, reasonable attorney's fees, investigative
costs, witness fees, and deposition expenses.
(d) Subsection (a) does not apply to a violation of Section
321.107(a).
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.103. VIOLATION OF CHAPTER: DECEPTIVE TRADE PRACTICE. A
violation of this chapter is a false, misleading, or deceptive
act or practice under Subchapter E, Chapter 17, and any public or
private right or remedy prescribed by that subchapter may be used
to enforce this chapter, except as provided by Section 321.109.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.104. VIOLATION OF CHAPTER: CIVIL ACTION FOR DAMAGES.
(a) A person injured by a violation of this chapter may bring an
action to recover:
(1) actual damages, including lost profits; or
(2) an amount described by Section 321.105 or 321.106, as
applicable.
(b) A person who prevails in the action is entitled to recover
reasonable attorney's fees and court costs.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.105. ALTERNATIVE RECOVERY FOR PERSONS OTHER THAN
ELECTRONIC MAIL SERVICE PROVIDERS. (a) In lieu of actual
damages, a person injured by a violation of this chapter arising
from the transmission of an unsolicited or commercial electronic
mail message may recover an amount equal to the lesser of:
(1) $10 for each unlawful message; or
(2) $25,000 for each day the unlawful message is received.
(b) Subsection (a) does not apply to a person who is an
electronic mail service provider.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.106. ALTERNATIVE RECOVERY FOR ELECTRONIC MAIL SERVICE
PROVIDERS. In lieu of actual damages, an electronic mail service
provider injured by a violation of this chapter arising from the
transmission of an unsolicited or commercial electronic mail
message may recover an amount equal to the greater of:
(1) $10 for each unlawful message; or
(2) $25,000 for each day the unlawful message is received.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.107. REQUIRED NOTICE OF CIVIL ACTION TO ATTORNEY
GENERAL; CIVIL PENALTY. (a) A person who brings an action under
Section 321.104 shall notify the attorney general of the action
by mailing a copy of the petition by registered or certified mail
not later than the 30th day after the date the petition is filed
and at least 10 days before the date set for a hearing on the
action.
(b) A person who violates Subsection (a) is liable to this state
for a civil penalty in an amount not to exceed $200 for each
violation. The attorney general may bring an action to recover
the civil penalty in the court in which the action under Section
321.104 was brought.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.108. INTERVENTION IN CIVIL ACTION BY ATTORNEY GENERAL.
The attorney general may intervene in an action brought under
Section 321.104 by:
(1) filing a notice of intervention with the court in which the
action is pending; and
(2) serving each party to the action with a copy of the notice
of intervention.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.109. CERTIFICATION AS CLASS ACTION PROHIBITED. A court
may not certify an action brought under this chapter as a class
action.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.110. PROTECTION OF SECRECY OR SECURITY. At the request
of a party to an action brought under this chapter, the court, in
the court's discretion, may conduct a legal proceeding in a
manner that protects:
(1) the secrecy and security of the computer, computer network,
computer data, computer program, and computer software involved
so as to prevent a possible recurrence of the same or a similar
act by another person; or
(2) any trade secret of a party to the action.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.111. IMMUNITY FROM LIABILITY: COMMERCIAL ELECTRONIC
MAIL MESSAGE TRANSMITTED BY ERROR OR ACCIDENT. A person may not
be held liable under this chapter for a commercial electronic
mail message that is transmitted as a result of an error or
accident.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.112. IMMUNITY FROM LIABILITY: TELECOMMUNICATIONS
UTILITIES AND ELECTRONIC MAIL SERVICE PROVIDERS. (a) In this
section, "telecommunications utility" has the meaning assigned by
Section 51.002, Utilities Code.
(b) A telecommunications utility or an electronic mail service
provider may not be held liable under Section 321.051 or 321.052
and is not subject to a penalty provided by this chapter.
(c) A person injured by a violation of this chapter does not
have a cause of action against a telecommunications utility or an
electronic mail service provider under this chapter solely
because the utility or service provider:
(1) is an intermediary between the sender, or a person acting on
behalf of the sender, and the recipient in the transmission of
electronic mail that violates this chapter;
(2) provides transmission, routing, relaying, handling, or
storing, through an automatic technical process, of an
unsolicited commercial electronic mail message through the
utility's or service provider's computer network or facilities;
or
(3) provides telecommunications services, information services,
or other services used in the transmission of an electronic mail
message that violates this chapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.113. QUALIFIED IMMUNITY FROM LIABILITY OF SENDERS. A
sender may not be held liable for the transmission of an
electronic mail message that violates this chapter if the sender:
(1) contracts in good faith with an electronic mail service
provider to transmit electronic mail messages for the sender; and
(2) has no reason to believe the electronic mail service
provider will transmit any of the sender's electronic mail
messages in violation of this chapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.
Sec. 321.114. AUTHORITY TO BLOCK CERTAIN COMMERCIAL ELECTRONIC
MAIL MESSAGES; QUALIFIED IMMUNITY. (a) An electronic mail
service provider may on its own initiative block the receipt or
transmission through its service of any commercial electronic
mail message that the service provider reasonably believes is or
will be transmitted in violation of this chapter, if the service
provider:
(1) provides a process for the prompt, good faith resolution of
a dispute related to the blocking with the sender of the
commercial electronic mail message; and
(2) makes contact information for the resolution of the dispute
accessible to the public on the service provider's Internet
website.
(b) An electronic mail service provider who complies with
Subsection (a) may not be held liable for blocking the receipt or
transmission through its service of any commercial electronic
mail message that the service provider reasonably believes is or
will be transmitted in violation of this chapter.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.01, eff. April 1, 2009.