Email offers inundate our inboxes between black Friday and now. I’ve taken lots of steps to unsubscribe and filter and block everything that I consider spam. However, there has been one local business that has been especially fond of emailing me regardless of how many times I unsubscribe. As a local business, and as a consumer, you should be aware of Idaho’s stance on email spam. Here is a memo I wrote a while ago that’s worth a read for small businesses (not only so you don’t annoy someone out of spending money, but so you don’t annoy someone into fining you!)
It is unlawful in Idaho to send junk email (spam) or unsolicited faxes that are advertisements. Idaho’s Consumer Protection Act offers individuals protection against junk email, and also penalizes those who illegally telemarket or fax bulk advertisements. There is scant case law or judicial opinions interpreting these laws in the State of Idaho.
IDAHO’S SPAM LAWS
Idaho’s Consumer Protection Act protects individuals from spam. Idaho law protects against “bulk electronic mail advertisements practices”. Spam is an electronic message (email) “containing the same or similar advertisement, which is contemporaneously transmitted to two (2) or more recipients, pursuant to an internet or intranet computer network.” A “computer network” is a minimum of two (2) remotely connected devices or computers are capable of transmitting data through communication facilities.
In a nutshell: Spam is an advertisement sent to two or more people using the internet.
Moreover, it is unlawful for a person to use a computer to send spam if the sender:
- Uses a fictitious name of a third party in the return address field without that third party’s permission.
- Misrepresents any information that would identify the point of origin of the transmission of the advertisement.
- Sends an e-mail that fails to contain information identifying the point of origin of the transmission of the advertisement.
- Sends an e-mail to a recipient five (5) days after the recipient unsubscribed from an e-mail.
A recipient of spam that meets any of the above criteria may bring an action to recover damages. Recipients of spam are able to seek actual and punitive damages. This applies to people who have suffered an “ascertainable loss of money or property” or need to treat an agreement as voidable. Damages are calculated as either the actual damages suffered or one thousand dollars ($1,000), whichever is greater. There is also the option for a class action. The class is allowed to seek the total amount of actual damages suffered or one thousand dollars ($1,000), whichever is greater. In addition to actual damages, the recipient may seek restitution, an injunction against the sender from sending bulk electronic mail, punitive damages, equitable relief, and any other relief which the court deems just and necessary.
The recipient may also choose to seek damages from the transmitter of bulk messages, which does not require actual damages, just simply that the sender falls into one of the statutory classifications. If the recipient chooses to attempt to recover under against the transmitter, the recovery is the greater of either $100 for each bulk e-mail transmitted to the recipient, or one thousand dollars ($1,000) total.
Idaho law provides several exceptions to the spam rule:
- Idaho law does not apply to bulk e-mail that is part of the terms of service of a computer network or an email provider.
- Idaho law does not apply to messages the recipient accessed from an electronic bulletin board (for instance, spam messages found in the comment section to a news story)
- Idaho law does not apply to email from an “organization or a similar entity to the members of such organization” (this email list sharing is common among related nonprofits and political organizations).
Hello, 1994. SPAM FAXES AND TELEMARKETERS
Idaho’s Spam law does not cover fax machines because they are considered telephonic communications instead of electronic communications. However, Idaho provides for criminal penalties if someone is using a fax machine to harass or annoy (I’ve got a great plot to now sell to Lifetime). Using a facsimile to make a false statement to harass or annoy the recipient is a misdemeanor. Second or subsequent convictions will be charged as a felony.
Faxed advertisements and telephone solicitations are both regulated under the Idaho Telephone Solicitation Act (Title 48, Chapter 10, Idaho Code). In Idaho, it is okay to solicit people by telephone if the solicitor follows certain practices enumerated in the statute. It is always unlawful in Idaho to send unsolicited advertisements to a facsimile machine. There is no leeway or exceptions to the law regarding fax machines. Whoever sends an unsolicited advertisement to a fax machine is in violation of the Idaho Consumer Protection Act. The Idaho Attorney General’s Office enforces the Act, but the Act also provides for private causes of action and remedies.
Specifically, a telephone solicitor may never
- Intimidate or torment someone during a solicitation.
- Refuse to hang up after being requested to do so.
- “Misrepresent the price, quality, or availability of the goods or services being offered to the purchaser” or to fail to disclose material matters relating to the services or goods offered.
- Falsely advertise or imply that the caller or product has the approval or endorsement of any government or agency.
- Mislead or block the recipient of your call from knowing the identity of the solicitor or business.
- Violate any unfair solicitation practice enumerated in Idaho Code § 48-603A.
Idaho Code 48-1007 contains a nonexclusive list of private causes of action and remedies a person may seek against a telephone or fax solicitor. Generally, remedies against telephone solicitors require proof of actual damages. For example, if a person purchases goods or services because of a telephone solicitation or fax advertisement and suffers damages as a result, then the recipient may seek to recover for damages the recipient suffered. Any contract or agreement formed because of an illegal fax or telephone solicitation is voidable. It is against Idaho public policy to contract or agree to waive any purchaser’s rights and any agreement to do will be declared null and void. It is also unlawful to contact any person that has placed themselves on the Idaho “do not call list”. Idaho Code Ann. § 48-1003A (West). The District Court may impose a penalty on those that violate the do not call list provision not to exceed five hundred dollars ($500) for the first violation, two thousand five hundred dollars ($2,500) for the second violation, and five thousand dollars ($5,000) for the third and subsequent violations.
Certain telephone solicitors are exempt from the Idaho Telephone Solicitation Act under Idaho Code § 48-1005 when:
- The telephone call is an isolated incident and not conducted in a pattern of repeated calls or less than sixty 60(%) percent of the caller’s prior year sales were made as a result of telephone solicitations.
- The person receiving the phone call has previously purchased goods or services from the solicitor or business entity for which the person is soliciting.
- The person soliciting does not have the intent to “obtain provisional acceptance of a purchase” during the phone call and only arranges for a major sales presentation to be made at a later face-to-face meeting between the person and the purchaser, and the later face-to-face meeting is not for the purpose of collecting the payment or delivering any item purchased.”
- The solicitation is from a business licensed by any federal or state agency.
- The solicitation is for the purposes of selling a newspaper subscription or advertising, or a telephone directory.
- “A person who has at least one (1) business location in the state under the same name as that used in connection with telephone solicitations and ninety percent (90%) of the person’s business involves the purchaser’s obtaining services and products at the person’s business location.”
- A person who solicits sales by delivering a catalog of merchandise to purchasers if the catalog contains written or illustrated descriptions of the item for sale, includes the business or home address of the solicitation, has at least twenty-four (24) pages of material and illustrations, has an annual circulation of not less than two hundred and fifty thousand (250,000).
And voila. More than you could ever hope to know about this.