INDIANA CODE
TITLE 24.  TRADE REGULATIONS; CONSUMER SALES AND CREDIT
ARTICLE 5.  CONSUMER SALES
CHAPTER 22.  DECEPTIVE COMMERCIAL ELECTRONIC MAIL
Added by House Bill 1083, approved April 17, 2003

IC 24-5-22-1

    Sec. 1. As used in this chapter, "assist the transmission" means to provide substantial assistance or support that enables a person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged or intends to engage in a practice that violates this chapter.

IC 24-5-22-2

    Sec. 2. (a) As used in this chapter, "commercial electronic mail message" refers to an electronic mail message sent to promote the sale or lease of real property, goods, or services.

    (b) The term does not include an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, if the sender has agreed to such an arrangement.

IC 24-5-22-3

    Sec. 3. As used in this chapter, "electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

IC 24-5-22-4

    Sec. 4. (a) As used in this chapter, "initiate the transmission" refers to the action by the original sender of an electronic mail message.

    (b) The term does not include an action by any intervening interactive computer service that handles or retransmits the message.

IC 24-5-22-5

    Sec. 5. (a) As used in this chapter, "interactive computer service" means an information service, a system, or an access software provider that provides or enables computer access to a computer server by multiple users.

    (b) The term includes the following:
    (1) A service or system that provides access to the Internet.
    (2) A system operated or services offered by a library, a school, a state educational institution (as defined in IC 20-12-0.5-1), or a private college or university.

IC 24-5-22-6

    Sec. 6. As used in this chapter, "Internet domain name" refers to a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the right most string specifying the top of the hierarchy.

IC 24-5-22-7

    Sec. 7. (a) For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is an Indiana resident if that information is available, upon request, from the registrant of the Internet domain name contained in the recipient's electronic mail address.

    (b) Subsection (c) applies only to a commercial electronic mail message that:

    (1) uses a third party's Internet domain name without permission of the third party;
    (2) otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of the commercial electronic mail message; or
    (3) contains false or misleading information in the subject line.

    (c) A person may not initiate or assist in the transmission of a commercial electronic mail message described in subsection (b):

    (1) from a computer located in Indiana; or

    (2) to an electronic mail address that the sender:
        (A) knows; or
        (B) has reason to know;
    is held by a resident of Indiana.

IC 24-5-22-8

    Sec. 8. A person may not do any of the following:

    (1) Send unsolicited commercial electronic mail and fail to use "ADV:" as the initial four (4) characters in the subject line of the electronic mail. This subdivision does not apply if any of the following apply:

    (A) The sender of the electronic mail has a current business relationship with the recipient of the electronic mail.
    (B) The sender of the electronic mail is an organization using the electronic mail to communicate with its members.
    (C) The sender of the electronic mail is an organization using the electronic mail to communicate exclusively with the organization's employees or contractors, or both.

    (2) Send unsolicited commercial electronic mail and fail to use "ADV:ADLT" as the first eight (8) characters in the subject line of the electronic mail if the unsolicited commercial electronic mail is any of the following:

    (A) The unsolicited commercial electronic mail contains a solicitation for the sale or lease of services or tangible or intangible personal or real property that may not be purchased, leased, or possessed by a minor under Indiana law.
    (B) The unsolicited commercial electronic mail contains a solicitation for an extension of credit.
    (C) The unsolicited commercial electronic mail contains matter that is harmful to minors under Indiana law.

    (3) Send unsolicited commercial electronic mail and fail to provide a means for the recipient easily and at no cost to the recipient to remove the recipient's name from the sender's electronic mail address lists.

    (4) Send unsolicited commercial electronic mail to a recipient who has asked the sender to remove the recipient's electronic mail address from the sender's electronic mail address lists.

    (5) Provide to a third person the electronic mail address of a recipient who has asked the sender to remove the recipient's electronic mail address from the sender's electronic mail address lists. This subdivision applies to a third person who is a part of the sender's business organization. This subdivision does not prohibit providing a recipient's electronic mail address to a third person for the sole purpose of inclusion of the electronic mail address on a do-not-mail list.

IC 24-5-22-9

    Sec. 9. (a) An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail message that it reasonably believes is or will be sent in violation of this chapter.

    (b) An interactive computer service is not liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail message that it reasonably believes is or will be sent in violation of this chapter.

IC 24-5-22-10

    Sec. 10. (a) The following have a right of action against a person who initiates or assists the transmission of a commercial electronic mail message that violates this chapter:

    (1) A person who receives the commercial electronic mail message.
    (2) An interactive computer service that handles or retransmits the commercial electronic mail message.

    (b) This chapter does not provide a right of action against:

    (1) an interactive computer service;
    (2) a telephone company; or
    (3) a CMRS provider (as defined by IC 36-8-16.5-6);

whose equipment is used to transport, handle, or retransmit a commercial electronic mail message that violates this chapter.

    (c) It is a defense to an action under this section if the defendant shows by a preponderance of the evidence that the violation of this chapter resulted from a good faith error and occurred notwithstanding the maintenance of procedures reasonably adopted to avoid violations of this chapter.

    (d) If the plaintiff prevails in an action filed under this section, the plaintiff is entitled to the following:

    (1) An injunction to enjoin future violations of this chapter.
    (2) Compensatory damages equal to any actual damage proven by the plaintiff to have resulted from the initiation of the commercial electronic mail message. If the plaintiff does not prove actual damage, the plaintiff is entitled to presumptive damages of five hundred dollars ($500) for each commercial electronic mail message that violates this chapter and that is sent by the defendant:
        (A) to the plaintiff; or
        (B) through the plaintiff's interactive computer service.
    (3) The plaintiff's reasonable attorney's fees and other litigation costs reasonably incurred in connection with the action.

    (e) A person outside Indiana who:

    (1) initiates or assists the transmission of a commercial electronic mail message that violates this chapter; and
    (2) knows or should know that the commercial electronic mail message will be received in Indiana;

submits to the jurisdiction of Indiana courts for purposes of this chapter.