Anna Bninski '23
Features Editor
Happy Valentine’s Day! If you are looking for a way to fund your romantic dinner (or you simply enjoy having slightly more money, at the expense of digital sexual harassers), let me offer you a potential source of income: Va. Code § 8.01-46.2 (2022), Civil Action for Dissemination of Intimate Images to Another; Penalty.
This new provision in the state code was introduced to the General Assembly last year by notable Law School alumna Jennifer McClellan ’97 and took effect on July 1, 2022. I recommend reading the provision in full, but here’s subsection B, which gets to the gist of the law:
Any person 18 years of age or older who knowingly transmits an intimate image by computer or other electronic means to the computer or electronic communication device of another person 18 years of age or older when such other person has not consented to the use of his computer or electronic communication device for the receipt of such material or has expressly forbidden the receipt of such material shall be considered a trespass and shall be liable to the recipient of the intimate image for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs. The court may also enjoin and restrain the defendant from committing such further acts.(emphasis added).
“Okay, great,” you may be thinking. “Someone sent me an unsolicited dick pic. Can I get $500 to purchase high-tier chocolates, and maybe a whole rosebush and a very large stuffed bear?”
The answer, of course, is: It depends. Section 8.01-46.2 doesn’t have a specified statute of limitations, so it falls within Virginia’s general two-year statute of limitations for civil actions.[1] (Also, a mere thirst-trap-type image is unlikely to fall within the statute and yield damages for an offended recipient, as the code defines “intimate image” as “a photograph, film, video, recording, digital picture, or other visual reproduction of a person 18 years of age or older[2] who is in a state of undress so as to expose the human male or female genitals.” (§ 8.01-46.2.A))
So if you suffered the arrival of an unsolicited or unwelcome explicit visual within the last two years, you might think it’s time to hustle and get those papers served! (Best of luck tracking down a physical address for that random internet person.)[3] However, given that the law took effect last July 1, and since we have a pesky constitutional provision[4] forbidding ex post facto laws, you’ll do best to concentrate your demands on images received within the last seven months.
On a more positive note, venue for this action “may lie in the jurisdiction where the intimate image is transmitted from or where the intimate image is received or possessed by the plaintiff.” (§ 8.01-46.2.D). So, wherever you are in the Commonwealth of Virginia, if you still have an unsolicited or unwelcome pic, or if you are still in the area where you received it in the first place, you can just utilize your local court.
You may want to note that Virginia small claims courts have jurisdiction over civil actions when the amount claimed is under $5,000. (Va. Code § 16.1-122.2). So, those doors are open to you.
But since the new statute allows for (reasonable) attorney’s fees, why head to small claims court, representing yourself, when you could throw a bone to a friend recently barred in Virginia by engaging them to represent you in general court? The Law School is famous for its collegiality, after all. What’s more collegial than bringing a fellow UVA alum a little business in the form of salacious litigation? I struggle to think of a higher form of friendship than together utilizing state law to extract money from overenthusiastic “photographers.”[5]
I hope this information is mildly useful, and I wish you all the most heartwarming and lucrative of Valentine’s Days. Happy filing!
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amb6ag@virginia.edu
[1] See Va. Code § 8.01-243 for statute of limitation information, in the event that you’re really interested.
[2] Images of people under eighteen are, of course, a separate and serious criminal matter. See Va. Code § 18.2-374.1:1.
[3] No shade to the dating apps; I met my husband on Bumble. I also opted into a Bumble class action settlement and received a princely $37 payout, so it’s been a win-win for me.
[4] U.S. Const. art. I, §10, cl. 1, for those who are invested in the citations of this predominantly silly article.
[5] This may primarily reflect a failure of my imagination, but I am what I am. On our second date, I told my aforementioned husband that I was “quibbling and litigious.” There’s someone for everyone, apparently. Happy Valentine’s Day!