Law / United States / 
Virginia
Virginia Transmission of Unsolicited Commercial Electronic Mail Statute
Va. Code 18.2-152.3:1, 18.2-152.12
In force.
A commercial messages rule binding public and private bodies.
- Obligation class
- Prohibition
What it requires
- Do not use a computer or computer network with intent to falsify or forge electronic mail transmission information or other routing information in connection with transmitting unsolicited commercial email (spam), and do not knowingly sell, give, distribute, or possess with intent to distribute software primarily designed, of limited other commercial use, or marketed to enable that falsification.
- Sending unsolicited commercial email is not itself an offense under this statute; mail to a recipient with whom you have an existing business or personal relationship is not spam, and mail an organization sends to its members is not spam for the civil action.
These lines are LexLint's reading of the law's text. Also read by: Jaynes v. Commonwealth, Record No. 062388 (Va. ) (recorded ).
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
The base offense is a Class 1 misdemeanor; it is a Class 6 felony where the volume of spam transmitted exceeds 10,000 attempted recipients in 24 hours, 100,000 in 30 days, or 1,000,000 in a year, or where the revenue from a single transmission exceeds $1,000 or the total revenue from spam sent to one electronic mail service provider exceeds $50,000, and knowingly using a minor to help transmit spam under those aggravated conditions is also a Class 6 felony.
Statutory damages
A person other than an electronic mail service provider who is injured by a spam transmission that violated the authority granted or the policies set by the electronic mail service provider, where the sender knew of those policies or they were posted on the provider's website, may elect in lieu of actual damages to recover the lesser of $10 for each spam message transmitted or $25,000 a day, plus attorney fees and costs. An electronic mail service provider injured the same way may separately elect to recover $1 for each intended recipient who is its end user, or $25,000 for each day an attempt is made, an amount the court may adjust for the number of complaints generated, the defendant's culpability, prior history, and economic gain.
- As of
- Currency
- USD
Who enforces it
Enforcement body
Criminal prosecution by the Commonwealth; a private civil action for an injured person or an injured electronic mail service provider under Va. Code 18.2-152.12.
Settledness
The court held the version of section 18.2-152.3:1 before it, which reached all unsolicited bulk electronic mail, unconstitutionally overbroad on its face and vacated the convictions. The section now applies to spam, defined in section 18.2-152.2 as unsolicited commercial electronic mail.
- As of
- Case link
- https://www.vacourts.gov/static/opinions/opnscvwp/1062388.pdf
- Case citation
- Jaynes v. Commonwealth, Record No. 062388 (Va. )
- Open questions
- Does Va. Code section 18.2-152.3:1, which now applies to "spam" defined as unsolicited commercial electronic mail, cure the facial overbreadth the Supreme Court of Virginia found in the version that reached all unsolicited bulk electronic mail?
- Does the statutory-damages election in Va. Code section 18.2-152.12(B) reach spam sent in violation of no policy set by an electronic mail service provider, when it applies only to injury "in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider"?
What this law does
Virginia law defines spam as unsolicited commercial electronic mail, excluding mail sent to a recipient with whom the sender has an existing business or personal relationship. Electronic mail an organization sends to its members is not spam for the civil action.
Sending spam is not itself an offense under this statute; using a computer or computer network with intent to falsify or forge electronic mail transmission or other routing information in connection with transmitting spam through or into an electronic mail service provider's network or its subscribers, or knowingly selling, giving, distributing or possessing with intent to distribute software primarily designed, of limited other commercial use, or marketed to enable that falsification, is a Class 1 misdemeanor.
The falsification offense becomes a Class 6 felony where the volume of spam transmitted exceeds 10,000 attempted recipients in 24 hours, 100,000 in 30 days, or 1,000,000 in a year, or where the revenue from a single transmission exceeds $1,000 or the total revenue from all spam sent to one electronic mail service provider exceeds $50,000, and knowingly using a minor to help transmit spam in such a felony is also a Class 6 felony.
A person injured by a violation may recover damages and costs, and where the spam was sent in contravention of the authority granted or the policies set by the electronic mail service provider, and the sender knew of them or they were posted on the provider's website, the injured person may also recover attorney fees and costs and elect, in lieu of actual damages, the lesser of $10 for each spam message transmitted or $25,000 a day.
An electronic mail service provider injured the same way may elect to recover $1 for each intended recipient who is its end user, or $25,000 for each day an attempt is made, an amount a court may adjust for the number of complaints, the defendant's culpability and history, and its economic gain.
The prohibition is framed as a rule against falsified or forged transmission and routing information, the kind of state rule against falsity or deception in a commercial electronic mail message that the federal CAN-SPAM Act's preemption clause leaves in force. The sections this entry groups came into force on different days.
When LexLint raises it
When your app profile says your app sends commercial email.
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