Arkansas Unsolicited Commercial and Sexually Explicit Electronic Mail Prevention Act
A.C.A. § 4-88-601, et seq.
Arkansas Code
Title 4 - Business and Commercial Law
Subtitle 7 - Consumer Protection
Chapter 88 - Deceptive Trade Practices
Subchapter 6 — Unsolicited Commercial and Sexually Explicit Electronic Mail Prevention Act
4-88-601. Title.
4-88-602. Definitions.
4-88-603. Unsolicited commercial or sexually explicit electronic mail — Requirements.
4-88-604. Interactive computer service and electronic mail service provider authority.
4-88-605. Criminal penalty.
4-88-606. Civil action for violation — Election on damages — Costs and attorney's fees — Defense.
4-88-607. Enforcement of subchapter.
4-88-601. Title.
This subchapter may be reference to and cited
4-88-602. Definitions.
As used in this subchapter:
(1) "Commercial" means for the purpose of promoting the sale, lease, or exchange of goods, services, or real property;
(2) "Computer network" means a set of related remotely connected devices and communication facilities, including two (2) or more computers with the capability to transmit data through communication facilities;
(3) "Electronic mail" means an electronic message, a file, data, or other information that is transmitted:
(A) Between two (2) or more computers, computer networks, or electronic terminals; or
(B) Within or between computer networks;
(4) "Electronic mail address" means a destination commonly expressed as a string of characters to which electronic mail may be sent or delivered;
(5) "Electronic mail service provider" means a person who:
(A) Is an intermediary in the transmission of electronic mail from the sender to the recipient; or
(B) Provides to end users of electronic mail service the ability to send and receive electronic mail;
(6) "Harmful to minors" shall have the same meaning as set forth in § 5-68-501(2);
(7) "Interactive computer service" means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet, and also the systems operated or services offered by libraries or educational institutions;
(8) "Internet domain name" means a globally unique, hierarchical reference to an Internet host or service assigned through centralized Internet authorities and comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy;
(9) "Person" means any individual, corporation, partnership, association, limited liability company, any other form or business association, or any combination of them;
(10) (A) (i) "Preexisting business relationship" means that there was a business transaction or communication between the sender and the recipient of a commercial electronic mail message during the five-year period preceding the receipt of that message.
(ii) A preexisting business relationship does not exist after a recipient requests to be removed from the distribution list of a sender.
(B) If a sender operates through separate lines of business or divisions and holds itself out to the recipient as that particular line of business or division rather than as the entity of which the line of business or division is a part, then the line of business or the division shall be treated as the sender for purposes of this section;
(11) "Sexually explicit electronic mail" means a commercial electronic mail that contains material that is harmful to minors or promotes an electronic link to material that is harmful to minors; and
(12) "Unsolicited" means without the recipient's express permission, except that commercial electronic mail is not unsolicited if the sender has a preexisting business or personal relationship with the recipient.
HISTORY: Acts 2003, No. 1019, § 1.
4-88-603. Unsolicited commercial or sexually explicit electronic mail -- Requirements.
(a) Each person who sends or causes to be sent an unsolicited commercial electronic mail or an unsolicited sexually explicit electronic mail through the intermediary of an electronic mail service provider or to an electronic mail address held by a resident of the state shall:
(1) Conspicuously state in the electronic mail the sender's:
(A) Legal name;
(B) Correct street address; and
(C) Valid Internet domain name;
(2) For a sexually explicit electronic mail, include in the electronic mail a subject line that contains "adv:adult" as the first nine (9) characters;
(3) Provide the recipient a convenient, no-cost mechanism to notify the sender not to send any future electronic mail to the recipient, including:
(A) Return electronic mail to a valid, functioning return electronic address; and
(B) For a sexually explicit electronic mail and if the sender has a toll-free telephone number, the sender's toll-free telephone number; and
(4) Conspicuously provide in the text of the electronic mail a notice:
(A) That informs the recipient that the recipient may conveniently and at no cost be excluded from future commercial or sexually explicit electronic mail, as the case may be, from the sender; and
(B) For sexually explicit electronic mail, if the sender has a toll-free telephone number, that includes the sender's valid, toll-free telephone number that the recipient may call to be excluded from future electronic mail from the sender.
(b) (1) A commercial electronic mail is not unsolicited if the sender has a preexisting business or personal relationship with the recipient.
(2) The sender of a commercial electronic mail of this nature must still include in the electronic mail message the required disclosures set forth in subdivisions (a)(3) and (4) of this section and shall remove the recipient from future mailings if requested.
(c) A person who sends or causes to be sent an unsolicited commercial electronic mail or an unsolicited sexually explicit electronic mail through the intermediary of an electronic mail service provider located in the state or to an electronic mail address held by a resident of the state may not:
(1) Use a third party's Internet domain name in identifying the point of origin or in stating the transmission path of the electronic mail without the third party's consent;
(2) Misrepresent any information in identifying the point of origin or the transmission path of the electronic mail; or
(3) Fail to include in the electronic mail the information necessary to identify the point of origin of the electronic mail.
(d) (1) If the recipient of an unsolicited commercial electronic mail or an unsolicited sexually explicit electronic mail notifies the sender that the recipient does not want to receive future commercial electronic mail or future sexually explicit electronic mail from the sender, the sender may not send that recipient a commercial electronic mail or a sexually explicit electronic mail either directly or through a subsidiary or affiliate.
(2) If a recipient has requested to be removed from future mailings, the sender may recontact the recipient if a preexisting business relationship has been reestablished or if the recipient has expressly requested to receive future mailings from the sender.
HISTORY: Acts 2003, No. 1019, § 1.
4-88-604. Interactive computer service and electronic mail service provider authority.
(a) An interactive computer service or electronic mail service provider may block the receipt or transmission through its service of any bulk electronic mail that it reasonably believes is or will be sent in violation of this subchapter.
(b) An interactive computer service or electronic mail service provider is not:
(1) In violation of this section and the injured party shall not have a cause of action against an interactive computer service or mail service provider due to the fact that the interactive computer service or electronic mail service provider:
(A) Is an intermediary between the sender and recipient in the transmission of an electronic mail that violates this section; or
(B) Provides transmission of unsolicited commercial electronic mail messages over the provider's computer network or facilities; or
(2) Liable for any action it voluntarily takes in good faith to block the receipt or transmission through its service of any electronic mail advertisements that it believes is or will be sent in violation of this subchapter.
(c) An interactive computer service may disconnect or terminate the service of any person who is in violation of this subchapter.
HISTORY: Acts 2003, No. 1019, § 1.
4-88-605. Criminal penalty.
(a) A person who violates any requirement of § 4-88-603 with respect to an unsolicited sexually explicit electronic mail is guilty of a Class B misdemeanor.
(b) A person who is found guilty of, or pleads guilty or nolo contendere to, violations of § 4-88-603 is not relieved from civil liability in an action under § 4-88-606.
HISTORY: Acts 2003, No. 1019, § 1.
4-88-606. Civil action for violation -- Election on damages -- Costs and attorney's fees -- Defense.
(a) For any violation of a provision of this subchapter, an action may be brought by:
(1) A person who received the unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail that violates this subchapter; or
(2) An electronic mail service provider through whose facilities the unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail was transmitted.
(b) (1) In each action under subdivision (a)(1) of this section, a recipient or electronic mail service provider may elect, in lieu of actual damages, to recover the lesser of:
(A) Ten dollars ($10.00) per unsolicited commercial electronic mail or unsolicited sexually explicit electronic mail sent to a previously opted-out electronic mail address or transmitted through the electronic mail service provider or otherwise sent in violation of this subchapter; or
(B) Twenty-five thousand dollars ($25,000) per day the violation occurs.
(2) Each prevailing recipient or electronic mail service provider shall be awarded costs and reasonable attorney's fees.
(c) It is an affirmative defense to a violation of this subchapter if a person can demonstrate that the sender at the time of the alleged violation had:
(1) Maintained a list of consumers who have notified the person not to send any subsequent commercial electronic messages;
(2) Established and implemented with due care and reasonable practices and procedures to effectively prevent unsolicited commercial electronic mail messages in violation of this subchapter;
(3) Trained the sender's personnel in the requirements of this subchapter; and
(4) Maintained records demonstrating compliance with this subchapter.
HISTORY: Acts 2003, No. 1019, § 1.
4-88-607. Enforcement of subchapter.
(a) (1) Any transmission of unsolicited commercial or sexually explicit electronic mail in violation of this subchapter shall constitute an unfair and deceptive act or practice under § 4-88-107.
(2) All remedies, penalties, and authority granted to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., or this subchapter shall be available to the Attorney General for the enforcement of this subchapter.
(b) The prosecuting attorneys of the various districts and counties of this state shall also have full authority to enforce the provisions of this subchapter.
(c) Nothing in the provisions of this subchapter shall prohibit the bringing of a civil action against a violator of this subchapter by an individual harmed by a deceptive trade practice.
HISTORY: Acts 2003, No. 1019, § 1.
For more information, see here: https://www.arkleg.state.ar.us/Acts/CodeSectionsAmended?ddBienniumSession=2015%2F2015R
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