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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 HB2718 Engrossed -2- LRB9105535WHdv 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, HB2718 Engrossed -5- LRB9105535WHdv 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, HB2718 Engrossed -6- LRB9105535WHdv 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.)