CONSUMER ALERT

 MIKE COX
ATTORNEY GENERAL

The Attorney General provides Consumer Alerts to inform the public of unfair, misleading, or deceptive business practices, and to provide information and guidance on other issues of concern.

 Michigan's Anti-Spam Law The Unsolicited Commercial E-mail Protection Act 2003 Public Act 42, MCL 445.2501 et seq

Michigan's anti-spam law became effective on September 1, 2003.  This alert provides a general overview of the law.  A full copy of the law is available at: http://www.mileg.org/printDocument.asp?objName=mcl-act-42-of-2003&version=txt.

For general information on reducing junk e-mail, see the Attorney General's "Spam Reduction - Tips for Reducing Junk E-mail" alert.  Consumers should be aware that federal spam laws may be enacted that could affect the options of Michigan consumers.

What is Unsolicited Commercial E-mail?

Commercial e-mail is e-mail that promotes goods, services, real property, and other things of value.

Under Michigan law, an e-mail is considered "unsolicited" if it was sent without the recipient's express permission by a business with which the consumer had no preexisting business or personal relationship. 

A "preexisting business relationship" is defined as a relationship existing before the receipt of an e-mail and formed voluntarily by the recipient with another person (through an inquiry, application, purchase, or use of a product or service furnished by the sender).  

Finally, an e-mail is not unsolicited if it was received as a result of the recipient opting into a system in order to receive promotional material.

What Is Required of Senders of Unsolicited Commercial E-mail?

A person who intentionally sends (or causes to be sent) an unsolicited commercial e-mail message through an e-mail service provider that the sender knew or "should have known" was located in Michigan, or to an e-mail address that the sender knew or "should have known" was held by a Michigan resident, must do the following:

• Include in the e-mail subject line "ADV:" as the first four characters;
• Provide the sender's legal name, correct street address, valid Internet domain name, and valid return e-mail address;
• Establish a toll-free telephone number, a valid return e-mail address, or another "easy-to-use" electronic method by which a recipient can notify the sender to stop sending e-mail and prominently disclose this information in e-mail messages;
• Establish and maintain the necessary policies and records to ensure that consumers' requests not to receive additional e-mail will be honored.

What Is A Sender of Commercial E-mail Prohibited from Doing?

A person who sends (or causes to be sent) unsolicited commercial e-mail either through an e-mail service provider located in Michigan, or to an e-mail address held by a resident of Michigan, may not do any of the following:

• Use a third-party's Internet domain name or e-mail address in identifying the point of origin or transmission path of the e-mail ad without the third party's consent.
• Misrepresent any information in identifying the e-mail's point of origin or transmission path.
• Fail to include the information necessary to identify the e-mail's point of origin.   
• Sell, distribute, or provide (directly or indirectly) software used to falsify transmission/routing information.

Civil Remedies

The following parties may bring a civil suit against a sender who violates the act:

• A person who receives an unsolicited commercial e-mail;
• An e-mail service provider through whose facilities the e-mail was transmitted;
• The Attorney General.

Private parties can recover actual costs and reasonable attorney fees, plus:

• Actual damages; or

• The lesser of either $500 per unsolicited commercial e-mail received or transmitted or $250,000 for each day the violation occurred. 

The prevailing recipient or service provider would be awarded actual costs and reasonable attorney fees.

Criminal Penalties

In general, a violation of the act would be considered a misdemeanor punishable by up to one year of imprisonment and a fine of up to $10,000.  However, persons who violate prohibitions relating to the disclosure of routing and transmission information or who violate the act in the furtherance of another crime would be guilty of a felony punishable by up to four years in prison and a fine of up to $25,000.  Each commercial e-mail sent in violation of the act would be a separate violation.

Proof that the recipient was unable to contact the sender through the return e-mail address provided by the sender would constitute "prima facie" evidence  - evidence that would, if uncontested, establish that a sender committed a criminal violation of the act.