Right of action by interactive computer service; defenses; remedies
Sec. 4.7. (a) An interactive computer service that handles or
retransmits a commercial electronic mail message has a right of
action against a person who initiates or assists the transmission of the
commercial electronic mail message that violates this chapter.
(b) This chapter does not provide a right of action against:
(1) an interactive computer service;
(2) a telephone company (as defined in IC 8-1-2-88);
(3) a CMRS provider (as defined in IC 36-8-16.5-6);
(4) a cable operator (as defined in 47 U.S.C. 522(5)); or
(5) any other entity that primarily provides connectivity to an
operator;
if the entity's equipment is used only to transport, handle, or
retransmit information that violates this chapter and is not capable of
blocking the retransmission of information 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 violating 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.
As added by P.L.70-2005, SEC.7.
Last modified: May 24, 2006