18.2-152.12 - Civil relief; damages.
§ 18.2-152.12. Civil relief; damages.
A. Any person whose property or person is injured by reason of a violation ofany provision of this article or by any act of computer trespass set forth insubdivisions A 1 through A 8 of § 18.2-152.4 regardless of whether such actis committed with malicious intent may sue therefor and recover for anydamages sustained and the costs of suit. Without limiting the generality ofthe term, "damages" shall include loss of profits.
B. If the injury under this article arises from the transmission of spam incontravention of the authority granted by or in violation of the policies setby the electronic mail service provider where the defendant has knowledge ofthe authority or policies of the EMSP or where the authority or policies ofthe EMSP are available on the electronic mail service provider's website, theinjured person, other than an electronic mail service provider, may alsorecover attorneys' fees and costs, and may elect, in lieu of actual damages,to recover the lesser of $10 for each and every spam message transmitted inviolation of this article, or $25,000 per day. The injured person shall nothave a cause of action against the electronic mail service provider thatmerely transmits the spam over its computer network. Transmission ofelectronic mail from an organization to its members shall not be deemed to bespam.
C. If the injury under this article arises from the transmission of spam incontravention of the authority granted by or in violation of the policies setby the electronic mail service provider where the defendant has knowledge ofthe authority or policies of the EMSP or where the authority or policies ofthe EMSP are available on the electronic mail service provider's website, aninjured electronic mail service provider may also recover attorneys' fees andcosts, and may elect, in lieu of actual damages, to recover $1 for each andevery intended recipient of a spam message where the intended recipient is anend user of the EMSP or $25,000 for each day an attempt is made to transmit aspam message to an end user of the EMSP. In calculating the statutory damagesunder this provision, the court may adjust the amount awarded as necessary,but in doing so shall take into account the number of complaints to the EMSPgenerated by the defendant's messages, the defendant's degree of culpability,the defendant's prior history of such conduct, and the extent of economicgain resulting from the conduct. Transmission of electronic mail from anorganization to its members shall not be deemed to be spam.
D. At the request of any party to an action brought pursuant to this section,the court may, in its discretion, conduct all legal proceedings in such a wayas to protect the secrecy and security of the computer, computer network,computer data, computer program and computer software involved in order toprevent possible recurrence of the same or a similar act by another personand to protect any trade secrets of any party and in such a way as to protectthe privacy of nonparties who complain about violations of this section.
E. The provisions of this article shall not be construed to limit anyperson's right to pursue any additional civil remedy otherwise allowed by law.
F. A civil action under this section must be commenced before expiration ofthe time period prescribed in § 8.01-40.1. In actions alleging injury arisingfrom the transmission of spam, personal jurisdiction may be exercisedpursuant to § 8.01-328.1.
(1984, c. 751; 1985, c. 92; 1999, cc. 886, 904, 905; 2003, cc. 987, 1016;2005, cc. 746, 761, 827; 2010, cc. 489, 529.)