Law / United States / 
Delaware
Delaware Unrequested or Unauthorized Electronic Mail Statute
In force.
A commercial messages rule binding public and private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
As of .
What it requires
- Do not, without authorization, intentionally or recklessly distribute unsolicited bulk commercial electronic mail to a receiving address or account under the control of an authorized user of a computer system, unless the mail is sent between individuals, the recipient requested it, an organization sends it to its own members, or a preexisting business relationship exists.
- Do not use a computer or computer network without authority to falsify or forge electronic mail transmission information in connection with sending unsolicited bulk electronic mail, and do not sell, give, distribute, or possess with intent to distribute, software primarily designed, of only limited other significant use, or marketed for falsifying that information.
- Include in every item of commercial electronic mail sent to a Delaware receiving address information telling the recipient how to unsubscribe or stop receiving further commercial electronic mail from you, and stop sending it once a recipient asks you to.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Violating § 937 or § 938 is a computer crime under 11 Del. C. § 939, graded by the dollar value of the damage or of the property or computer services affected: fourth degree, a class A misdemeanor, at under $1,500 or an unascertainable value (deemed $250); third degree, a class G felony, at $1,500 or more; second degree, a class E felony, over $5,000; and first degree, a class D felony, over $10,000.
Who enforces it
Enforcement body
Criminal prosecution by the State; an aggrieved person may sue under 11 Del. C. § 941 for an injunction, restitution, a receiver, or damages.
Settledness
- As of
- Open questions
- Does Delaware's ban on sending unsolicited bulk commercial email without a preexisting relationship or the recipient's request survive the CAN-SPAM Act's preemption of a state statute that expressly regulates commercial email, given that the ban does not rest on falsity or deception?
What this law does
Delaware makes it a computer crime, without authorization, to intentionally or recklessly distribute unsolicited bulk commercial electronic mail to a receiving address or account under the control of an authorized user of a computer system. This offense does not reach mail sent between individuals, mail the recipient requested, mail an organization sends to its own members, or mail sent where a preexisting business relationship exists.
It is also a computer crime to use a computer or computer network without authority to falsify or forge electronic mail transmission information in connection with sending unsolicited bulk electronic mail. A separate computer crime is failing to stop sending commercial electronic mail to a receiving address or account after being asked to.
Every item of commercial electronic mail sent to a Delaware receiving address must tell the recipient how to unsubscribe or stop receiving further commercial electronic mail from the sender. These crimes are graded by the dollar value of the damage or of the property or computer services affected, which may be aggregated over one scheme or course of conduct. Fourth degree, a class A misdemeanor, applies when the damage or value, if any, is under $1,500.
Where that value cannot be satisfactorily ascertained, it is deemed to be $250. Third degree, a class G felony, applies when that value is $1,500 or more. Second degree, a class E felony, applies when that value exceeds $5,000. First degree, a class D felony, applies when that value exceeds $10,000. An aggrieved person may sue for an injunction, restitution, or the appointment of a receiver.
Independent of that remedy, any person who suffers injury to person, business or property may sue for actual damages, damages for unjust enrichment, and treble damages on a showing of wilful and malicious conduct. The court awards reasonable costs and attorney's fees to any aggrieved person who prevails.
The bar on falsifying or forging electronic mail transmission information is framed as a rule against deception, the kind of state email rule the CAN-SPAM Act's preemption clause leaves in force for a statute that expressly regulates commercial email. Its unsolicited-bulk-mail ban and its unsubscribe and stop-sending duties are not framed that way.
Delaware codifies the whole statute inside its computer-crime chapter, and the same federal clause does not preempt a state law to the extent it relates to acts of fraud or computer crime.
When LexLint raises it
When your app profile says your app sends automated outreach.