17529.5.
(a) It is the intent of the Legislature that this section, which prohibits falsity and deception contained in or accompanying commercial email messages and attachments, operates within the exceptions to the preemption provisions to the extent permitted by the CAN-SPAM Act of 2003 (15 U.S.C. Sec. 7707(b)) and any other provision of federal law.(a) (b) It is unlawful for any person or entity to initiate or advertise in a commercial e-mail email advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:
(1) The e-mail email advertisement contains or is accompanied by a third-party’s domain name or email address without the permission of the third party. party, provided that nothing in this section shall be construed to affect comparative advertising that references names, user names, domain names, or email addresses.
(2) The e-mail header of the email advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.
(3) (A) The body of the email advertisement contains or is accompanied by a falsified or misrepresented postal address of the advertiser or initiator, a falsified or misrepresented business name of the advertiser or initiator, if any, or a falsified or misrepresented unsubscribe link. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.
(B) For purposes of this paragraph, “falsified or misrepresented business name” does not include a “fictitious business name,” as defined in Section 17900.
(C) For purposes of this paragraph, “falsified or misrepresented unsubscribe link” means an unsubscribe link that is designed such that it does not provide the consumer with the ability to unsubscribe.
(3) (4) The e-mail email advertisement has a subject line that a person knows would be is likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
(b) (c) (1) (A) In addition to any other remedies provided by any other provision of law, the following may bring an action against a person or entity that violates any provision of this section:
(i) The Attorney General. General, a district attorney, or a city attorney.
(ii) An electronic mail service provider.
(iii) A recipient of an unsolicited commercial e-mail email advertisement, as defined in Section 17529.1.
(B) A person or entity bringing an action pursuant to subparagraph (A) may recover either or both of the following:
(i) Actual damages.
(ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail email advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident.
(C) A recipient is not required to opt out of receiving the commercial email messages in order to bring a cause of action for a violation of this section.
(C) (D) The recipient, an electronic mail service provider, or the Attorney General, if district attorney, or city attorney, if attorney of the prevailing plaintiff, may also recover reasonable attorney’s fees and as costs in addition to other allowable costs.
(E) The court may enter an order enjoining a violation of this section.
(D) (F) However, there There shall not be a cause of action under this section against an electronic mail service provider any party that is only involved in the routine transmission of the e-mail email advertisement over its computer network.
(2) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this section, the court The court shall reduce the liquidated damages recoverable under paragraph (1) to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail email advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident. incident only upon a finding that the defendant has complied with, and has satisfied the burden of proof by demonstrating, all of the following:
(A) The defendant has established and implemented, in good faith and with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial email advertisements that are in violation of this section.
(B) The defendant has provided its personnel with training regarding the practices and procedures.
(C) The defendant has assessed and has maintained records regarding the effectiveness of the implementation of the practices and procedures and has taken reasonable steps to address any compliance gaps identified in the assessment by adjusting the practices and procedures.
(3) (A) A person who has brought an action against a party under this section shall not bring an action against that party under Section 17529.8 or 17538.45 for the same commercial e-mail email advertisement, as defined in subdivision (c) of Section 17529.1.
(B) A person who has brought an action against a party under Section 17529.8 or 17538.45 shall not bring an action against that party under this section for the same commercial e-mail email advertisement, as defined in subdivision (c) of Section 17529.1.
(c) (d) A violation of this section is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000), imprisonment in a county jail for not more than six months, or both that fine and imprisonment.
(e) The provisions of this section are severable. If any provision of this section or its application is held invalid or is preempted, the invalidity or preemption shall not affect any other provision or application that can be given effect without the invalid or preempted provision or application.