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.

Terms Used In Indiana Code 24-5-22-10

  • Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
  • commercial electronic mail message: refers to an electronic mail message sent to promote the sale or lease of real property, goods, or services. See Indiana Code 24-5-22-2
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • 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. See Indiana Code 24-5-22-5
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
  • Plaintiff: The person who files the complaint in a civil lawsuit.
(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; or

(2) a communications service provider (as defined in IC 8-1-2.6-13);

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.

As added by P.L.36-2003, SEC.1. Amended by P.L.132-2012, SEC.6.

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