A Note on the Law of Cyberstalking in Virginia

Now what I am about to say here is not legal advice .  I am a lawyer but I am not your lawyer.  In fact, let me quote from Beldar’s disclaimer:

Any legal opinions or information that I may publish on the BeldarBlog weblog should be considered to be exclusively for purposes of entertainment. No reader of this website should ever rely upon any legal opinions or other information published here — not even just a little bit! If you need legal advice or information that you can rely upon, I strongly recommend that you consult directly — in person preferably, or at a minimum by telephone, and not over the Internet — with a lawyer duly licensed to practice law in the state (or territory or country) where you live.

Now I won’t go that far.  I don’t think this is purely for entertainment purposes, but often I talk about law so you can understand how our legal system works better, so that as informed citizens of the republic you can choose whether the law needs to be reformed or not.  But you still should never say, “but Aaron Worthing said that the law said X” as a formal legal opinion.  That would be a grievous mistake.

But in talking about the wisdom of the laws already on the books, I have to say that Virginia really has an eloquent solution to the problem of cyberstalking.  Although the statutes in question originated in the 1950’s, Virginia’s statutes against business conspiracy provide a unique remedy to a certain version of the problem.  I have used them a lot in my day job and they would work very well in certain cyberstalking situations.  Those statutes are Va Code §18.2-499 and §18.2-500.  These statutes make it illegal for two or more people to conspire for the purpose of “willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever[.]”  §18.2-499.  So in other words if two or more people agree to harm your business, your reputation, etc. then they run afoul of the statute.

Sort of.  Obviously not all combinations to harm a business should be outlawed—indeed could be outlawed—consistent with basic economic freedom.  The courts in Virginia have reasonably read into this statute a requirement that there be a conspiracy “to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.”  Hechler Chevrolet, Inc. v. General Motors, 337 S.E.2d 744 (Va. 1985).  As the Hechler court observed: “There can be no conspiracy to do an act which the law allows.”

So that means that if I and a friend decide to work together to build a car so great that it will drive all of the other car companies out of business, that isn’t a violation of this statute even if it is motivated by malice toward the car companies.  That’s just free market competition.  But if we conspire to make our car successful by sabotaging Toyotas, or even just by defamation of another company, then we can be held liable for that conspiracy.

So to the person facing cyberstalking, if it is more than one person working in concert, then this statute might apply in a number of ways.  For instance, if defamation occurs, or if they intentionally inflict emotional distress on you or a number of other unlawful means on you, then you might be covered.

Now any lawyers out there might think, “ho, hum, we have something like that in my state.”  And indeed, most states seem to have at least a common law cause of action for conspiracy that is similar, but not exactly the same, as these statutes.  So what makes these Virginia laws so special?

The answer, simply put, is the law’s uniquely punitive approach.  For starters, persons familiar with the Virginia Code know that §18.2, a.k.a. Title 18.2 is entitled “Crimes and Offenses Generally.”  That is right, in Virginia, business conspiracy is a crime.  But even more delicious is §18.2-500 providing victims with an extremely powerful civil remedy.  First, the statute makes it clear that non-economic damages are available—so your payout is not limited how much money you lost, but also compensation for less tangible harms such as pain and suffering.

And then you are supposed to take all those economic damages and non-economic damages and triple them.  That’s right, the statute provides for automatic treble damages.  And then you add in attorneys fees and court costs to that award, as well as any additional punitive damages.

So what makes this law special is the remedy it provides for the violation of one’s rights.  And the remedy is key.  As I wrote over at Big Government:

About nine years ago, I sat down for my first class in law school: contracts.  I don’t remember the name of the first case that our professor had us read, but I remember what it was about: remedies.  The case was largely noteworthy for its discussion of the proper measure of “damages”—what us lawyers call the amount of money awarded to the victorious plaintiff.  The professor explained how one casebook author used to start his entire first chapter and the first few weeks of class discussing nothing but the proper measure of damages—that is, how much money the plaintiff gets.  Because in the end, that is how you demonstrate the value of the right in question: by providing an appropriate remedy when it is violated.

As I said in the beginning, this is not legal advice.  If you are facing cyberstalkers, you should sit down with a lawyer to determine whether you can make use of this statute or what other options are available.  A creative lawyer delights in finding solutions to a client’s problems.  I know I do.  But, still, if you are a Virginian besieged by one or more cybersalkers, this statute just might provide the remedy for the violation of your rights.  And good for Virginia for providing it.

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