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SOUTH DAKOTA CODIFIED LAWS
Chapter 37-24.  Deceptive Trade Practices and Consumer Protection
(provisions added or amended in 2002)

§ 37-24-6.  Deceptive acts or practices--Each act as Class 2 misdemeanor--Subsequent acts. It is a deceptive act or practice for any person to:

    (1) Knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been mislead, deceived, or damaged thereby;

    (2) Advertise price reductions without satisfying one of the following:

    (a) Including in the advertisement the specific basis for the claim of a price reduction; or

    (b) Offering the merchandise for sale at the higher price from which the reduction is taken for at least seven consecutive business days during the sixty-day period prior to the advertisement.

    Any person advertising consumer property or services in this state, which advertisements contain representations or statements as to any type of savings claim, including reduced price claims and price comparison value claims, shall maintain reasonable records for a period of two years from the date of sale and advertisement, which records shall disclose the factual basis for such representations or statements and from which the validity of any such claim be established. However, these reasonable record provisions do not apply to the sale of any merchandise which:

    (a) Is of a class of merchandise that is routinely advertised on at least a weekly basis in newspapers, shopping tabloids, or similar publications; and

    (b) Has a sales price before price reduction that is less than fifteen dollars per item;

    (3) Represent a sale of merchandise at reduced rates due to the cessation of business operations and after the date of the first advertisement remain in business under the same, or substantially the same, ownership or trade name, or continue to offer for sale the same type of merchandise at the same location for more than one hundred twenty days;

    (4) Give or offer a rebate, discount, or anything of value to an individual as an inducement for selling consumer property or services in consideration of giving the names of prospective purchasers or otherwise aiding in making a sale to another person, if the earning of the rebate, discount, or other thing of value is contingent upon the occurrence of an event subsequent to the time the individual agrees to the sale;

    (5) Engage in any scheme or plan for disposal or distribution of merchandise whereby a participant pays a valuable consideration for the chance to receive compensation primarily for introducing one or more additional persons into participation in the planner's scheme or for the chance to receive compensation when the person introduced by the participant introduces a new participant;

    (6) Send, deliver, provide, mail, or cause to be sent, delivered, provided, or mailed any unordered consumer property or service, or any bill or invoice for unordered consumer property or service provided;

    (7) Advertise a rate, price, or fee for a hotel, motel, campsite, or other lodging accommodation which is not in fact available to the public under the terms advertised. It is not a violation of this subdivision to establish contract rates which are different than public rates;

    (8) Charge a rate, price, or fee for a hotel, motel, campsite, or other lodging accommodation which is different than the rate, price, or fee charged on the first night of the guest's stay unless, at the initial registration of the guest, a written notification of each price, rate, or fee to be charged during the guest's reserved continuous stay is delivered to the guest and an acknowledgment of receipt of the notice is signed by the guest and kept by the innkeeper for the same period of time as is required by § 34-18-21;

    (9) Knowingly and intentionally fail to mail to a future guest a written confirmation of the date and rates of reservations made for any accommodation at a hotel, motel, campsite, or other lodging accommodation when a written request for confirmation is received from the future guest;

    (10) Refuse to return or reverse the charge for a deposit upon any hotel, motel, campsite, or other lodging accommodation which is canceled by the guest more than thirty days before the date of the reservation. The innkeeper may establish a policy requiring a longer time for notice of cancellation or a handling fee in the event of cancellation, which may not exceed twenty-five dollars, if the policy is in writing and is delivered or mailed to the guest at or near the making of the reservation;

    (11) Knowingly advertise or cause to be listed through the internet or in a telephone directory a business address that misrepresents where the business is actually located or that falsely states that the business is located in the same area covered by the telephone directory. This subdivision does not apply to a telephone service provider, an internet service provider, or a publisher or distributor of a telephone directory, unless the conduct proscribed in this subdivision is on behalf of the provider, publisher, or distributor;

    (12) Sell, market, promote, advertise, or otherwise distribute any card or other purchasing mechanism or device that is not insurance that purports to offer discounts or access to discounts from pharmacies for prescription drug purchases if:

    (a) The card or other purchasing mechanism or device does not expressly state in bold and prominent type, prevalently placed, that discounts are not insurance;

    (b) The discounts are not specifically authorized by a separate contract with each pharmacy listed in conjunction with the card or other purchasing mechanism or device; or

    (c) The discount or access to discounts offered, or the range of discounts or access to the range of discounts, is misleading, deceptive, or fraudulent, regardless of the literal wording.

    The provisions of this subdivision do not apply to a customer discount or membership card issued by a store or buying club for use in that store or buying club.

    (13) Send or cause to be sent an unsolicited commercial electronic mail message that does not include in the subject line of such message "ADV:" as the first four characters. If the message contains information that consists of explicit sexual material that may only be viewed, purchased, rented, leased, or held in possession by an individual eighteen years of age and older, the subject line of each message shall include "ADV:ADLT" as the first eight characters. An unsolicited commercial electronic mail message does not include a message sent to a person with whom the initiator has an existing personal or business relationship or a message sent at the request or express consent of the recipient.

    Each act in violation of this section is a Class 2 misdemeanor. Any subsequent conviction of an act in violation of this statute, which occurs within two years is a Class 1 misdemeanor. Any subsequent conviction of an act in violation of this statute, which occurs within two years of a conviction of a Class 1 misdemeanor pursuant to this statute, is a Class 6 felony.


§ 37-24-36.  Computer fraud--Definitions. Terms used in §§ 37-24-36 to 37-24-40, inclusive, mean:

    (1) "Assist the transmission," actions taken by a person to provide substantial assistance or support that enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message if 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 this chapter;

    (2) "Commercial electronic mail message," an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease. The term 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, if the sender has agreed to such an arrangement;

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

    (4) "Initiate the transmission," the action by the original sender of an electronic mail message. The term does not refer 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 if 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 this chapter;

    (5) "Interactive computer service," 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 systems operated or services offered by libraries or educational institutions;

    (6) "Internet domain name," 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.


§ 37-24-37.  Transmission of false or misleading electronic mail messages prohibited. No person 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 South Dakota or to an electronic mail address that the sender knows, or has reason to know, is held by a South Dakota resident that:

    (1) 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

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

    For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a South Dakota resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.


§ 37-24-38.  Violation constitutes unfair or deceptive act. The Legislature finds that the practices covered by §§ 37-24-36 to 37-24-40, inclusive, are matters vitally affecting the public interest for the purpose of protecting the public. A violation of §§ 37-24-36 to 37-24-40, inclusive, 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 this chapter.


§ 37-24-39.  Computer service may block suspicious e-mail--Immunity for good faith action. An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of §§ 37-24-36 to 37-24-40, inclusive.

    No interactive computer service is liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of §§ 37-24-36 to 37-24-40, inclusive.


§ 37-24-40.  Remedies--Triple damages--Costs--Confidentiality and protection of trade secrets. A recipient or a provider of internet access services may bring either or both of the following actions:

    (1) An action based on a violation of § 37-24-37 to enjoin such violation.

    (2) An action to recover damages for such a violation in an amount equal to the greater of:

    (a) The amount of the actual monetary loss; or

    (b) Five hundred dollars for each violation, not to exceed a total of ten thousand dollars.

    If the court finds that the defendant willfully, knowingly, or repeatedly violated § 37-24-37, the court may increase the amount of the award to an amount equal to not more than three times the amount available under this section.

    In any such action, the court may require an undertaking for the payment of the costs of such action, and assess reasonable costs, including reasonable attorneys' fees, against any party.

    At the request of any party to an action brought pursuant to this section or any other participant in such an action, the court may issue protective orders and conduct legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any such party or participant.


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