Maryland's Anti-Spam Law
On October 1, 2002, Maryland joined a growing number of states that have enacted laws to limit unsolicited e-mail or so-called “spam.” This new law (Md. Commercial Law Code Ann. § 14-3001 - 14-300) applies to any unsolicited e-mail sent from Maryland or to an e-mail address located in Maryland. A brief summary of the law follows.
Definitions The new law regulates “commercial electronic mail”, which is defined as e-mail that advertises real property, goods or services for sale or lease. The definition does not include e-mail to which an “interactive computer service provider” has attached an advertisement in exchange for the free use of an e-mail account. “Interactive computer service provider” in turn is defined as an information service, system, or access software provider that provides or enables computer access by multiple users to a computer service. Interestingly, the new law is not limited to e-mail sent to multiple addresses - so-called bulk e-mail - but applies to individual e-mail transmissions as well.
Prohibitions This law, as with the growing number of other current state laws governing spam, does not ban unsolicited e-mails. However, the law does require that the information in the subject line of an unsolicited e-mail be accurate and not misleading. The law prohibits a person from initiating a transmission, conspiring with another person to initiate a transition, or assisting in the transmission of commercial electronic mail that:
- Is from a computer in Maryland or is sent to an e-mail address that the sender knows or should have known is held by a Maryland resident (under the law, a person is presumed to know that the intended recipient is a Maryland resident if the information is available on request from the registrant of the internet domain name contained in the recipient's e-mail address); and
- uses a third party's interstate domain name or e-mail address without the permission of the third party;
- contains false or misleading information about the origin or the transmission path of the e-mail; or
- contains false or misleading information in the subject line that has the capacity, tendency or effect of deceiving the recipient.
These prohibitions do not apply to an interactive computer service provider or a telecommunication utility to the extent that such entity merely handles, retransmits or carries a transmission of e-mail. The law allows an interactive computer service provider to block the receipt or transmission of e-mail that it reasonably believes is or will be sent in apparent violation of the law, and does not hold the interactive computer service provider liable for any such actions that are voluntarily taken in good faith.
Penalties A person who violates the law is liable for reasonable attorney's fees and for damages:
- to the recipient of the e-mail in an amount equal to the greater of $500 or the recipient's actual damages;
- to the third party whose internet domain name(s) was used without their consent in an amount equal to the greater of $500 or the third party's actual damages; and
- to an interactive computer service provider in an amount equal to the greater of $1,000 or the interactive computer service provider's actual damages.
What this Means to You Given the potential liability associated with violations of this new law, if you use unsolicited e-mail in promoting your products or services, you should reassess any current e-mail policies and e-mail marketing initiatives, in order to ensure that they comply with this law as well as the law of any other states to which you may send unsolicited e-mail.
This WTP Alert has been prepared for general informational purposes only and is not intended as legal advice. Copyright © 2003 Whiteford, Taylor & Preston L.L.P.