(a) For purposes of this section, the following words have the following meanings:

1. (1) “Electronic mail advertisement” means any electronic mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient.

2. (2) “Unsolicited electronic mail advertisement” means any electronic mail advertisement that meets both of the following requirements:

   1. (A) It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.
   2. (B) It is not sent at the request of or with the express consent of the recipient.
3. (3) “Electronic mail service provider” means any business or organization qualified to do business in California that provides registered users the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail.
4. (4) “Initiation” of an unsolicited electronic mail advertisement refers to the action by the initial sender of the electronic mail advertisement. It does not refer to the actions of any intervening electronic mail service provider that may handle or retransmit the electronic message.
5. (5) “Registered user” means any individual, corporation, or other entity that maintains an electronic mail address with an electronic mail service provider.

(f)

1. (1) In addition to any other action available under law, any electronic mail service provider whose policy on unsolicited electronic mail advertisements is violated as provided in this section may bring a civil action to recover the actual monetary loss suffered by that provider by reason of that violation, or liquidated damages of fifty dollars ($50) for each electronic mail message initiated or delivered in violation of this section, up to a maximum of twenty-five thousand dollars ($25,000) per day, whichever amount is greater.
2. (2) In any action brought pursuant to paragraph (1), the court may award reasonable attorney’s fees to a prevailing party.

3. (3)

   1. (A) In any action brought pursuant to paragraph (1), the electronic mail service provider shall be required to establish as an element of its cause of action that prior to the alleged violation, the defendant had actual notice of both of the following:

      1. (i) The electronic mail service provider’s policy on unsolicited electronic mail advertising.
      2. (ii) The fact that the defendant’s unsolicited electronic mail advertisements would use or cause to be used the electronic mail service provider’s equipment located in this state.
   2. (B) In this regard, the Legislature finds that with rapid advances in Internet technology, and electronic mail technology in particular, Internet service providers are already experimenting with embedding policy statements directly into the software running on the computers used to provide electronic mail services in a manner that displays the policy statements every time an electronic mail delivery is requested. While the state of the technology does not support this finding at present, the Legislature believes that, in a given case at some future date, a showing that notice was supplied via electronic means between the sending and receiving computers could be held to constitute actual notice to the sender for purposes of this paragraph.

4. (4)

   1. (A) An electronic mail service provider who has brought an action against a party for a violation under Section 17529.8 shall not bring an action against that party under this section for the same unsolicited commercial electronic mail advertisement.
   2. (B) An electronic mail service provider who has brought an action against a party for a violation of this section shall not bring an action against that party under Section 17529.8 for the same unsolicited commercial electronic mail advertisement.