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Unsolicited Commercial Email Act
May 2000

On May 6, 2002, a new act regarding commercial email went into effect. We wanted to make you aware of this recent change to help eliminate future risks and damages that you may inadvertently be exposed to without full knowledge of this law.

What is the Unsolicited Commercial Email Act?

The Act imposes requirements on persons who send unsolicited commercial email. Email is considered commercial if it is sent for the purpose of promoting the sale, lease, or exchange of goods, services or real property. Commercial email is not "unsolicited" if the sender has a preexisting business or personal relationship with the recipient.

What are the new requirements for unsolicited email?

Each person who sends or causes to be sent an unsolicited commercial email through an email service provider located in Utah, or to an email address held by a Utah resident, shall:

(1) Conspicuously state the sender's legal name, correct street address and valid Internet domain name,

(2) Include "ADV:" as the first four characters in the subject line,

(3) Provide the recipient a convenient, no-cost mechanism to notify the sender not to send any future email to the recipient, including return email to a valid, functioning electronic return address, and

(4) Conspicuously provide in the email text a notice that the recipient may conveniently and at no cost be excluded from future commercial email from the sender.

The Act further states that a sender who is subject to the Act may not:

(1) Use a third party's Internet domain name in identifying the point of origin without consent,

(2) Misrepresent any information in identifying the point of origin or the transmission path of the email, or

(3) Fail to include in the email the information necessary to identify the point of origin of the email.

What are the potential damages?

The Act provides a cause of action for those who receive unsolicited commercial email. Action may be brought against the email sender by a person who received the unsolicited email or by an email service provider through whose facilities the unsolicited commercial email was transmitted.

A recipient or email service provider may recover:

(1) actual damages or, in lieu of actual damages, statutory damages equal to the lesser of:

(a) $10.00 per unsolicited commercial email or,

(b) $25,000.00 per day the violation occurs, and

(2) costs and reasonable attorney fees (to be awarded to each prevailing recipient or email service provider).

This alert is a brief summary of the Act that does not identify all of the requirements of the Act or specifically apply the Act to your situation. Therefore, prior to taking any action based on this alert, please contact us for more information or to discuss the steps you may take to increase the likelihood that you operate under the requirements of this law as of May 6, 2002.