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Senate advances amended anti-spam bill after floor fight over attorney fees and ISP liability
Summary
The Utah Senate advanced second substitute Senate Bill 59 (anti-spam) to third reading after adopting clarifications that exclude web banner/pop-up ads, tighten the sender definition, require a 'reasonable' opt-out window and raise statutory damages. Senators split on proposed changes to who can recover attorney fees; the amendment to let fees go both ways was defeated.
The Utah Senate on Feb. 20 moved second substitute Senate Bill 59, a revision to last year’s unsolicited-commercial-email law, to the third-reading calendar after extended debate and amendments.
Sponsor Senator Arendt said the bill clarifies the statute’s original scope and updates several definitions and remedies. "We said that if there's not a prior business relationship, then at the beginning of the subject line, they would put ADV for advertisement," she said, describing the law’s notice requirement and the importance of a valid opt-out mechanism. The substitute clarifies that web-based banner and pop-up advertisements are not covered because they are not sent to email addresses.
Lawmakers adopted an amendment to clarify who counts as a sender and to confirm that opt-out windows should be "reasonable" to accommodate different business practices, rather than a fixed two- or ten-day deadline. The sponsor also said the bill increases statutory damages from the original $10 level to amounts more consistent with other states and with Utah’s unsolicited-fax statute.
The most contested floor issue was attorney-fee recovery. Senator Blackham proposed changing a provision that currently awards fees to a prevailing plaintiff in order to permit fee awards to "the prevailing party" (so fees could be awarded to a defendant who prevailed). He argued this would deter abusive filings and settlements engineered to extract attorney fees. "What this allows is the cost and the attorney fees to go each way," he said, calling the change a deterrent to misuse.
Opponents, including Senator Arendt and others, said keeping a prevailing-plaintiff rule encourages small consumers to bring meritorious claims and aligns with similar consumer-protective provisions in Utah law. Arendt noted that comparable statutes and the policy intent favor enabling consumers to pursue claims without fear of an adverse fee award.
The body defeated Blackham’s amendment on a voice vote and ultimately placed the second substitute on the third-reading calendar. The Clerk recorded the second substitute as having received 24 aye votes, no recorded nays on the final roll call for that motion, with several senators absent (the floor announced 24 ayes, 0 nays, 5 absent when advancing the bill). The bill will return for third-reading debate and final passage.
Next steps: SB59 will appear on the third-reading calendar, where senators can offer final amendments and vote on final passage.
