1037-S2 AAS 4/16/99

2SHB 1037 - S AMD S2536.2 - 417

By Senator Brown

                              ADOPTED AS AMENDED (FLR 410) 4/16/99

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 19.190.010 and 1998 c 149 s 2 are each amended to read as follows:

    The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

    (1) "Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit a  commercial electronic mail message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any practice that violates the consumer protection act.

(2) "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease.  It does not mean an electronic mail message to which an interactive computer service provider has attached an advertisement in exchange for free use of an electronic mail account, when the sender has agreed to such an arrangement.

    (((2))) (3) "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

    (((3))) (4) "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message, unless such intervening interactive computer service assists in the transmission of an electronic mail message when it knows, or consciously avoids knowing, that the person initiating the transmission is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

    (((4))) (5) "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.

    (((5))) (6) "Internet domain name" refers to a globally unique, hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.

(7) "Person" means a person, corporation, partnership, or association.

    Sec. 2.  RCW 19.190.020 and 1998 c 149 s 3 are each amended to read as follows:

    (1) No person((, corporation, partnership, or association)) may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

    (a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

    (b) Contains false or misleading information in the subject line.

    (2) For purposes of this section, a person((, corporation, partnership, or association)) knows that the intended recipient of a commercial electronic mail message is a Washington resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.

    Sec. 3.  RCW 19.190.030 and 1998 c 149 s 4 are each amended to read as follows:

    (1) It is a violation of the consumer protection act, chapter 19.86 RCW, to conspire with another person to initiate the transmission or to initiate the transmission of a commercial electronic mail message that:

    (a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

    (b) Contains false or misleading information in the subject line.

    (2) It is a violation of the consumer protection act, chapter 19.86 RCW, to assist in the transmission of a commercial electronic mail message, when the person providing the assistance knows, or consciously avoids knowing, that the initiator of the commercial electronic mail message is engaged, or intends to engage, in any act or practice that violates the consumer protection act.

(3) The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW.  A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION. Sec. 4.  RCW 19.190.005 (Findings) and 1998 c 149 s 1 are each repealed.

NEW SECTION. Sec. 5.  (1) The legislature finds that:

    (a) The internet presents a new medium of communication through which speakers can publish false or defamatory statements about businesses or individuals to vast audiences at little or no cost to the speaker;

    (b) The publication of false or defamatory statements via the internet has the potential to cause serious injury to the victims of such statements, particularly financial injury to businesses that are the victims of false or defamatory on-line rumors about their stock, products or services, or executives or personnel;

    (c) False or defamatory statements on the internet are often published anonymously, making it difficult for victims to determine the identity and physical location of the speakers; and

    (d) Current legal procedures do not adequately address the challenges and opportunities the internet presents as a new medium of communication, both as a tool for publishing false or defamatory statements and for pursuing legal recourse against the speakers of such statements.

    (2) The legislature therefore intends that:

    (a) When the internet is used to publish false or defamatory statements about individuals residing in Washington or businesses doing business in Washington, a rebuttable presumption is created that the statements are published in Washington; and

    (b) When the identity or physical location of a speaker who has published false or defamatory statements via the internet about an individual residing in Washington or a business doing business in Washington is not known, a plaintiff in an action for libel or slander may serve a summons by publication via the internet.

    Sec. 6.  RCW 4.36.120 and Code 1881 s 99 are each amended to read as follows:

    In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause arose, but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish on trial that it was so published or spoken.  Where false or defamatory statements concerning a person residing in Washington or a business doing business in Washington are posted or electronically transmitted via the internet, a rebuttable presumption is created that the statements have been published in Washington.

    Sec. 7.  RCW 4.28.100 and 1981 c 331 s 13 are each amended to read as follows:

    When the defendant cannot be found within the state, and upon the filing of an affidavit of the plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state, or cannot be found therein, and that he has deposited a copy of the summons (substantially in the form prescribed in RCW 4.28.110) and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified, the service may be made by publication of the summons, by the plaintiff or his attorney in any of the following cases:

    (1) When the defendant is a foreign corporation, and has property within the state;

    (2) When the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent;

    (3) When the defendant is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action;

    (4) When the action is for divorce in the cases prescribed by law;

    (5) When the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly, or partly, in excluding the defendant from any interest or lien therein;

    (6) When the action is to foreclose, satisfy, or redeem from a mortgage, or to enforce a lien of any kind on real estate in the county where the action is brought, or satisfy or redeem from the same;

    (7) When the action is against any corporation, whether private or municipal, organized under the laws of the state, and the proper officers on whom to make service do not exist or cannot be found;

    (8) When the action is brought under RCW 4.08.160 and 4.08.170 to determine conflicting claims to property in this state; and

(9) When the action is for defamation concerning a person residing in Washington or a business doing business in Washington, where the false or defamatory statements were posted or electronically transmitted via the internet and the identity of the defendant is not known or readily ascertainable.

    Sec. 8.  RCW 4.28.110 and 1985 c 469 s 2 are each amended to read as follows:

    The publication shall be made in a newspaper of general circulation in the county where the action is brought once a week for six consecutive weeks:  PROVIDED, That publication of summons shall not be made until after the filing of the complaint, and the service of the summons shall be deemed complete at the expiration of the time prescribed for publication.  The summons must be subscribed by the plaintiff or his attorney or attorneys.  The summons shall contain the date of the first publication, and shall require the defendant or defendants upon whom service by publication is desired, to appear and answer the complaint within sixty days from the date of the first publication of the summons; and the summons for publication shall also contain a brief statement of the object of the action.  The summons for publication shall be substantially as follows:

    In the superior court of the State of Washington for the county of . . . . . .

. . . . . . . . ., Plaintiff,

           vs.                     No. . . . .

. . . . . . . . ., Defendant.

    The State of Washington to the said (naming the defendant or defendants to be served by publication):

    You are hereby summoned to appear within sixty days after the date of the first publication of this summons, to wit, within sixty days after the . . . . day of . . . . . ., 1. . . ., and defend the above entitled action in the above entitled court, and answer the complaint of the plaintiff . . . . . ., and serve a copy of your answer upon the undersigned attorneys for plaintiff . . . . . ., at his (or their) office below stated; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint, which has been filed with the clerk of said court.  (Insert here a brief statement of the object of the action.)

                    ............................................ ,

                                   Plaintiff's Attorneys.

                    P.O. Address.................................

                    County.......................................

                                   Washington.

When service of summons by publication is authorized under RCW 4.28.100(9), the publication specified in this section may be made via the internet, provided that the summons shall be posted to the same on-line location where the false or defamatory statements were posted or electronically transmitted to the electronic address of the sender of the false or defamatory statements, once a week for six consecutive weeks.

NEW SECTION. Sec. 9.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."

2SHB 1037 - S AMD S2536.2 417

By Senator Brown

                              ADOPTED AS AMENDED (FLR 410) 4/16/99

    On page 1, line 1 of the title, after "mail;" strike the remainder of the title and insert "amending RCW 19.190.010, 19.190.020,  19.190.030, 4.36.120, 4.28.100, and 4.28.110; creating a new section; and repealing RCW 19.190.005."

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