50-6,107. Commercial electronic mail act; definitions; consumer rights, requirements and prohibitions; private actions to seek relief; civil penalty; affirmative defense; unconscionable acts or practi
50-6,107
50-6,107. Commercial electronic mail act;definitions; consumer rights, requirements and prohibitions; private actions toseek relief; civil penalty; affirmative defense; unconscionable acts orpractices.(a) This act shall be known as the commercial electronic mail act.
(b) As used in this act:
(1) "Assist the transmission" means actions taken by a person to providesubstantial assistance or support which enables any person to formulate,compose, send, originate, initiate or transmit a commercial electronic mailmessage when the person providing the assistance knows that the initiator ofthe commercial electronic mail message isengaged, or intends to engage, in any practice that violates the Kansasconsumer protection act.
(2) "Commercial electronic mail message" means an electronic mail messagesent for the purpose of promoting property or services for sale or lease, butshall not include electronic mail messages sent by a natural personvolunteering to send such messages on behalf of a charitable organization asdefined by K.S.A. 17-1760, and amendments thereto.
(3) "Electronic mail address" means a destination, commonly expressed as astring of characters, to which electronic mail may be sent or delivered.
(4) "Established business relationship" means a prior and existingrelationship formed by a voluntary two-way communication between a sender and arecipient with or without an exchange of consideration, on the basis of anexpress authorization, application, purchase or transaction by the recipientregardingproducts or services offered by such sender, which relationship has not beenpreviously terminated by either party.
(5) "Initiate the transmission" refers to the action by the original senderof an electronic mail message, not to the action by any intervening interactivecomputer service that may handle or retransmit the message, unless suchintervening interactive computer service assists in the transmission of anelectronic mail message when it knows, that theperson initiating the transmission is engaged, or intends to engage, in any actor practice that violates the Kansas consumer protection act.
(6) "Interactive computer service" means any information service, system oraccess software provider that provides or enables computer access by multipleusers to a computer server, including specifically a service or system thatprovides access to the internet and such systems operated or services offeredby libraries or educational institutions.
(7) "Internet domain name" refers to a globally unique, hierarchicalreference to an internet host or service, assigned through centralized internetnaming authorities, comprising a series of character strings separated byperiods, with the right-most string specifying the top of the hierarchy.
(8) "Express authorization" means an express affirmative act by a recipientclearly agreeing to receive commercial electronic messages from a specified andidentifiable sender, or from multiple persons.
(c) No person shall:
(1) Initiate the transmission, conspire with another to initiate thetransmission, or assist the transmission, of a commercial electronic mailmessage from a computer located in Kansas or to an electronic mail address thatthe sender knows, is held by a Kansas resident that:
(A) Uses a third party's internet domain name without permission of the thirdparty, or otherwise misrepresents or obscures any information in identifyingthe point of origin or the transmission path of a commercial electronic mailmessage;
(B) contains false or misleading information in the subject line;
(C) does not contain as the first four characters of the subject line "ADV:";Provided, however, the characters "ADV" shall not be required in the subjectline if the recipient has an established business relationship or has givenexpress authorization to receive commercial electronic mail messagesor in electronic mail messages, other than messages ofa sexually explicit or otherwise adult oriented nature, sent to less than 500recipients per month. Thesender claiming exemption under this subsection shall have the burden ofproving the exemption by a preponderance of the evidence;
(D) does not contain instructions, in text at least as large as the majorityof the text in the transmission, for the recipient to follow to notify thesendernot to send any subsequent communications, witha valid sender operated return electronic mail address to which therecipient may reply to notify the sender not to send any further commercialelectronic mail messagesand the legal name of theperson or entity initiating the transmission, including such person's orentity's(i) physical address for the receipt of the United States mail or (ii) a tollfreetelephone number that the recipient may call to notify the sender not to sendany subsequent communications. It shall be prima facie evidence that the senderisin violation of this section if the recipient's reply electronic mail messageis returned to the recipient as undeliverable, or is otherwise not accepted bythe sender of the original commercial electronic mail message;or
(E) contains advertising material for viewing, use, consumption, sale, leaseor rental only by persons over 18 years of age, including but not limited tocontent of sexual, sexually explicit or otherwise adult-oriented nature, unlessthe first eight characters of the subject line are "ADV:ADLT."
(2) Initiate the transmission, conspire with another to initiate thetransmission, or assist the transmission, of a commercial electronic mailmessage from a computer located in Kansas or to an electronic mail address thatthe sender knows, is held by a Kansas resident that ismade after the recipient thereof has notified the sender not to send anysubsequent communications.
(3) Give, transfer, sell or otherwise share with another the electronic mailaddress of any recipient who has notified the sender not to send any subsequentcommunications for any use other than for the third party to place the addresson a do not contact list.
(4) Assist in the transmission of a commercial electronic mail message, whenthe person providing the assistance knows, thatthe initiator of the commercial electronic mail message is engaged, or intendsto engage, in any act or practice that violates the Kansas consumer protectionact.
(5) Knowingly sell, give or otherwise distribute or possess with the intentto sell, give or distribute software that:
(A) Is primarily designed or produced for the purpose of facilitating orenabling the falsification of electronic mail transmission information or otherrouting information;
(B) has only limited commercially significant purpose or use other than tofacilitate or enable the falsification of electronic mail transmissioninformation or other routing information; or
(C) is marketed by that person or another acting in concert with that personwith that person's knowledge for use in facilitating or enabling thefalsification of electronic mail transmission information or other routinginformation.
(d) For purposes of this section, a person knows or has reason to know thatthe intended recipient of a commercial electronic mail message is a Kansasresident if that information is available, upon request, from the registrant ofthe internet domain name contained in the recipient's electronic mail address.
(e) An interactive computer service may, upon its own initiative, block thereceipt or transmission through its service of any commercial electronic mailthat it reasonably believes is, or will be, sent in violation of this chapter.
(f) No interactive computer service may be held liable for any actionvoluntarily taken in good faith to block the receipt or transmission throughits service of any commercial electronic mail which it reasonably believes is,or will be, sent in violation of this act.
(g) Any violation of this section is an unconscionable act and practice underthe Kansas consumer protection act.
(h) Any person alleging a violation of this section including an interactivecomputer service damaged by a violation, shall be deemed aconsumer who has been aggrieved by a violation of the consumer protection actand to have suffered actual loss as referred to in K.S.A. 50-634 and 50-636 andamendments thereto.
(i) Any person alleging a violation of this section may bring a privateaction to seek relief pursuant to K.S.A. 50-634, 50-636 and this section, andamendments thereto, and such person shall be considered a consumer pursuant toK.S.A. 50-624, and amendments thereto, for the purposes of such private action.
(j) Any person that violates this section shall be subject to a civil penaltyof not less than $500 nor more than $10,000 for each such violation instead ofthe penalty provided for in subsection (a) of K.S.A. 50-636, and amendmentsthereto.
(k) It shall be an affirmative defense to a violation of this section if theperson can demonstrate, by clear and convincing evidence, (1) that the senderatthe time of the alleged violation had: (A) Maintained a list of consumers whohave notified the person not to send any subsequent commercial electronicmessages; (B) established and implemented, with due care, reasonable practicesand procedures to effectively prevent unsolicited commercial electronic mailmessages in violation of this section; (C) trained the sender's personnel inthe requirements of this section; and (D) maintained records demonstratingcompliance with this section; and (2) the unsolicited commercial electronicmessage was the result of an error. Such defense shall not be exercised by anyperson more than once within the state of Kansas in any 12-month period. Aperson shall be deemed to have exercised such defense if asserted in responseto any consumer complaint about a violation of this section, regardless ofwhether litigation has been initiated.
(l) The legislature finds that the practices covered by this section arematters vitally affecting the public interest for the purpose of applying theKansas consumer protection act. A violation of this section is not reasonableor necessary for the development and preservation of commerce and is anunconscionable act in violation of the Kansas consumer protection act.
(m) This section shall be a part of and supplemental to the Kansas consumerprotection act.
History: L. 2002, ch. 140, § 1; July 1.