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91_HB2718eng
HB2718 Engrossed LRB9105535WHdv
1 AN ACT concerning electronic communications and amending
2 the Consumer Fraud and Deceptive Business Practices Act.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Facsimile and Electronic Mail Commercial Solicitation Act.
7 Section 5. Faxing or e-mailing of unsolicited
8 advertising materials.
9 (a) No person or entity conducting business in this
10 State shall facsimile (fax) or cause to be faxed, or
11 electronically mail (e-mail) or cause to be e-mailed,
12 documents consisting of unsolicited advertising material for
13 the lease, sale, rental, gift offer, or other disposition of
14 any realty, goods, services, or extension of credit unless:
15 (1) In the case of a fax, that person or entity
16 establishes a toll-free telephone number that a recipient
17 of the unsolicited faxed documents may call to notify the
18 sender not to fax the recipient any further unsolicited
19 documents.
20 (2) In the case of e-mail, that person or entity
21 establishes a toll-free telephone number or valid sender
22 operated return e-mail address that the recipient of the
23 unsolicited documents may call or e-mail to notify the
24 sender not to e-mail any further unsolicited documents.
25 (b) All unsolicited faxed or e-mailed documents subject
26 to this Section shall include a statement informing the
27 recipient of the toll-free telephone number that the
28 recipient may call, or a valid return address to which the
29 recipient may write or e-mail, as the case may be, notifying
30 the sender not to fax or e-mail the recipient any further
31 unsolicited documents to the fax number, or numbers, or
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1 e-mail address, or addresses, specified by the recipient.
2 In the case of faxed material, the statement shall be in
3 at least 9-point type. In the case of e-mail, the statement
4 shall be the first text in the body of the message and shall
5 be of the same size as the majority of the text of the
6 message.
7 (c) Upon notification by a recipient of his or her
8 request not to receive any further unsolicited faxed or
9 e-mailed documents, no person or entity conducting business
10 in this State shall fax or cause to be faxed or e-mail or
11 cause to be e-mailed any unsolicited documents to that
12 recipient.
13 (d) In the case of e-mail, this Section shall apply when
14 the unsolicited e-mailed documents are delivered to an
15 Illinois resident via an electronic mail service provider's
16 service or equipment located in this State. For these
17 purposes, "electronic mail service provider" means any
18 business or organization qualified to do business in this
19 State that provides individuals, corporations, or other
20 entities the ability to send or receive electronic mail
21 through equipment located in this State and that is an
22 intermediary in sending or receiving electronic mail.
23 (e) As used in this Section, "unsolicited e-mailed
24 documents" means any e-mailed document or documents
25 consisting of advertising material for the lease, sale,
26 rental, gift offer, or other disposition of any realty,
27 goods, services, or extension of credit that meet both of the
28 following requirements:
29 (1) The documents are addressed to a recipient with
30 whom the initiator does not have an existing business or
31 personal relationship.
32 (2) The documents are not sent at the request of,
33 or with the express consent of, the recipient.
34 (f) As used in this Section, "fax" or "cause to be
HB2718 Engrossed -3- LRB9105535WHdv
1 faxed" or "e-mail" or "cause to be e-mailed" does not include
2 or refer to the transmission of any documents by a
3 telecommunications utility or Internet service provider to
4 the extent that the telecommunications utility or Internet
5 service provider merely carries that transmission over its
6 network.
7 (g) In the case of e-mail that consists of unsolicited
8 advertising material for the lease, sale, rental, gift offer,
9 or other disposition of any realty, goods, services, or
10 extension of credit, the subject line of each and every
11 message shall include "ADV:" as the first 4 characters. If
12 these messages contain information that consists of
13 unsolicited advertising material for the lease, sale, rental,
14 gift offer, or other disposition of any realty, goods,
15 services, or extension of credit, that may only be viewed,
16 purchased, rented, leased, or held in possession by an
17 individual 18 years of age and older, the subject line of
18 each and every message shall include "ADV:ADLT" as the first
19 8 characters.
20 (h) An employer who is the registered owner of more than
21 one e-mail address may notify the person or entity conducting
22 business in this State e-mailing or causing to be e-mailed,
23 documents consisting of unsolicited advertising material for
24 the lease, sale, rental, gift offer, or other disposition of
25 any realty, goods, services, or extension of credit of the
26 desire to cease e-mailing on behalf of all of the employees
27 who may use employer-provided and employer-controlled e-mail
28 addresses.
29 (i) Any person who willfully violates this Section
30 commits a Class C misdemeanor.
31 (j) In addition to any other penalties set forth in this
32 Section, violation of this Section constitutes an unlawful
33 practice under the Consumer Fraud and Deceptive Business
34 Practices Act.
HB2718 Engrossed -4- LRB9105535WHdv
1 (k) This Section shall become inoperative on and after
2 the date that federal law is enacted that prohibits or
3 otherwise regulates the transmission of unsolicited
4 advertising by electronic mail (e-mail).
5 Section 10. Electronic mail service providers; policy
6 for initiation of unsolicited electronic mail advertisement
7 by registered user.
8 (a) As used in this Section:
9 (1) "Electronic mail advertisement" means any
10 electronic mail message, the principal purpose of which
11 is to promote, directly or indirectly, the sale or other
12 distribution of goods or services to the recipient.
13 (2) "Unsolicited electronic mail advertisement"
14 means any electronic mail advertisement that meets both
15 of the following requirements:
16 (A) It is addressed to a recipient with whom
17 the initiator does not have an existing business or
18 personal relationship.
19 (B) It is not sent at the request of or with
20 the express consent of the recipient.
21 (3) "Electronic mail service provider" means any
22 business or organization qualified to do business in
23 Illinois that provides registered users the ability to
24 send or receive electronic mail through equipment located
25 in this State and that is an intermediary in sending or
26 receiving electronic mail.
27 (4) "Initiation" of an unsolicited electronic mail
28 advertisement refers to the action by the initial sender
29 of the electronic mail advertisement. It does not refer
30 to the actions of any intervening electronic mail service
31 provider that may handle or retransmit the electronic
32 message.
33 (5) "Registered user" means any individual,
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1 corporation, or other entity that maintains an electronic
2 mail address with an electronic mail service provider.
3 (b) No registered user of an electronic mail service
4 provider shall use or cause to be used that electronic mail
5 service provider's equipment located in this State in
6 violation of that electronic mail service provider's policy
7 prohibiting or restricting the use of its service or
8 equipment for the initiation of unsolicited electronic mail
9 advertisements.
10 (c) No individual, corporation, or other entity shall
11 use or cause to be used, by initiating an unsolicited
12 electronic mail advertisement, an electronic mail service
13 provider's equipment located in this State in violation of
14 that electronic mail service provider's policy prohibiting or
15 restricting the use of its equipment to deliver unsolicited
16 electronic mail advertisements to its registered users.
17 (d) An electronic mail service provider shall not be
18 required to create a policy prohibiting or restricting the
19 use of its equipment for the initiation or delivery of
20 unsolicited electronic mail advertisements.
21 (e) Nothing in this Section shall be construed to limit
22 or restrict the rights of an electronic mail service provider
23 under Section 230(c)(1) of Title 47 of the United States
24 Code, or any decision of an electronic mail service provider
25 to permit or to restrict access to or use of its system, or
26 any exercise of its editorial function.
27 (f) (1) In addition to any other action available under
28 law, any electronic mail service provider whose policy on
29 unsolicited electronic mail advertisements is violated as
30 provided in this Section may bring a civil action to recover
31 the actual monetary loss suffered by that provider by reason
32 of that violation, or liquidated damages of $50 for each
33 electronic mail message initiated or delivered in violation
34 of this Section, up to a maximum of $25,000 per day,
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1 whichever amount is greater.
2 (2) In any action brought pursuant to paragraph (1), the
3 court may award reasonable attorney's fees to a prevailing
4 party.
5 (3) (A) In any action brought pursuant to paragraph (1),
6 the electronic mail service provider shall be required to
7 establish as an element of its cause of action that prior to
8 the alleged violation, the defendant had actual notice of
9 both of the following:
10 (i) The electronic mail service provider's policy
11 on unsolicited electronic mail advertising.
12 (ii) The fact that the defendant's unsolicited
13 electronic mail advertisements would use or cause to be
14 used the electronic mail service provider's equipment
15 located in this State.
16 (B) In this regard, the General Assembly finds that with
17 rapid advances in Internet technology, and electronic mail
18 technology in particular, Internet service providers are
19 already experimenting with embedding policy statements
20 directly into the software running on the computers used to
21 provide electronic mail services in a manner that displays
22 the policy statements every time an electronic mail delivery
23 is requested. While the state of the technology does not
24 support such a finding at present, the General Assembly
25 believes that, in a given case at some future date, a showing
26 that notice was supplied via electronic means between the
27 sending and receiving computers could be held to constitute
28 actual notice to the sender for purposes of this paragraph.
29 (g) In addition to any other penalties set forth in this
30 Section, violation of this Section constitutes an unlawful
31 practice under the Consumer Fraud and Deceptive Business
32 Practices Act.
33 Section 905. The Consumer Fraud and Deceptive Business
HB2718 Engrossed -7- LRB9105535WHdv
1 Practices Act is amended by changing Section 2Z as follows:
2 (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
3 Sec. 2Z. Violations of other Acts. Any person who
4 knowingly violates the Automotive Repair Act, the Dance
5 Studio Act, the Physical Fitness Services Act, the Hearing
6 Instrument Consumer Protection Act, the Illinois Union Label
7 Act, the Job Referral and Job Listing Services Consumer
8 Protection Act, the Travel Promotion Consumer Protection Act,
9 the Credit Services Organizations Act, the Automatic
10 Telephone Dialers Act, the Pay-Per-Call Services Consumer
11 Protection Act, the Telephone Solicitations Act, the Illinois
12 Funeral or Burial Funds Act, the Cemetery Care Act, or the
13 Pre-Need Cemetery Sales Act, or Section 5 or Section 10 of
14 the Facsimile and Electronic Mail Commercial Solicitation Act
15 commits an unlawful practice within the meaning of this Act.
16 (Source: P.A. 89-72, eff. 12-31-95; 89-615, eff. 8-9-96;
17 90-426, eff. 1-1-98.)
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