Posts Tagged ‘spammer law’
I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets?
Posted by: David Leon in Business law, Intellectual Property, Litigation and judgments on June 14th, 2009
A party can request that a court provide protection for a trade secret or a vulnerability under Texas Business and Commerce Code 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.
I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws?
Posted by: David Leon in Business law, Intellectual Property on May 25th, 2009
Yes, Texas Business and Commerce Code Sec. 321.114 gives internet service providers and email service providers the authority to block emails that the ISP or email provider reasonably believes are in violation of 321.052 (the Texas anti-Spam laws). The provider must have in place a reasonably accessible mechanism to unblock the emails, should the sender believe s/he is in compliance with the law. The statute is listed below.
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.
I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued?
Posted by: David Leon in Business law, Contract law, Intellectual Property, Litigation and judgments on May 25th, 2009
Yes, however, you may have a defense. Texas Business and Commerce Code Sec. 321.113 provides a limited immunity from prosecution in the event that a sender acted in good faith in hiring a sender to send compliant unsolicited commercial emails, but the company (without knowledge of the sender) violates the law. However, there may still be liability for violating another state’s laws, if the emails wind up in an out of state user’s mailbox.
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.
I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge?
Posted by: David Leon in Business law, Contract law, Litigation and judgments on May 25th, 2009
Although you can be sued, you may have a defense under Texas Business and Commerce Code Sec. 321.112. The defense is very specific, and only applies to relay, store and forward servers
IMMUNITY FROM LIABILITY: TELECOMMUNICATIONS UTILITIES AND ELECTRONIC MAIL SERVICE PROVIDERS.
(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.
Can I create a class action lawsuit to go after a spammer in Texas?
Posted by: David Leon in Business law, Intellectual Property, Litigation and judgments on May 25th, 2009
No. Sec. 321.109 of the Texas Business and Commerce Code specifically PROHIBITS a class certification under this chapter.
My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer?
Posted by: David Leon in Business law, Intellectual Property, Litigation and judgments on May 25th, 2009
Yes. If your business was injured by a spammer, then you may have a cause of action against the spammer by means of Texas Business and Commerce Code Sec. 321.106 which provides:
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.
Note, the injured party may instead bring an action for lost profits, in lieu of the statutory damages listed above. Either way, the injured party MUST comply with Sec. 321.107, and give timely notice to the Texas Attorney General.
Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)?
Posted by: David Leon in Business law, Intellectual Property on May 25th, 2009
Yes. Sec. 321.102 of the Texas Business and Commerce Code covers unsolicited commercial email (spam) that is sent within the state of Texas, in violation of Sec. 321.052. The statute provides:
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.
Is it a crime to send a sexually explicit unsolicited commercial email?
Posted by: David Leon in Business law, Contract law, Criminal Defense, Intellectual Property, Litigation and judgments on May 25th, 2009
Yes, however, Texas Business and Commerce Code Sec. 321.052(a) provides a potential “safe harbor” under Texas law. Failure to comply with 321.052(a) may lead to criminal liability under 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.
Please note this is state specific, and there may be other state’s law or federal law implications as well.
I want to send an unsolicited commercial email in Texas. How do I comply?
Posted by: David Leon in Business law, Contract law, Intellectual Property on May 25th, 2009
Texas provides a limited safe harbor for unsolicited commercial email (a/k/a bulk email or SPAM) Please note, that other states may have different laws that would apply to email sent to residents of that state.
See 321.051 of the Texas Business and Commerce Code. 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).
Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails?
Posted by: David Leon in Business law, Intellectual Property, Litigation and judgments on May 25th, 2009
Yes. Sec. 321.051(b) of the Texas Business and Commerce Code specifically addresses this:
(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.
