Monetizing Mug Shots: A Legal Analysis
A picture is worth a thousand words. And when that picture is a mug shot it might be worth a whole lot more.
That not so attractive mug shot of you (who are we kidding?) — that godawful shot of you –for a DWI that you prayed nobody would ever see? It’s the first thing that comes up in Google searches of your name, thanks to websites like JustMugshots.com, BustedMugshots.com and FindMugshots.com, which compile mug shots from public records and put them into easy-to-search databases. And they’re getting rich doing it. Some sites charge up to $400 to remove your photo from their database. The problem: Many people don’t have that kind of money. And even if they do, once they pay one site that incriminating photo just pops up on another one.
Some people have decided they’re mad as hell and not going to take it anymore, and are suing the websites purveying the embarrassing pics. After all, people demanding money to delete photographs – or else – is extortion, isn’t it?
A lawyer for BustedMugshots.com and MugshotsOnline.com argues that the First Amendment protects the websites’ practices because mug shots are public records.
But Scott Ciolek, representing Ms. Lashaway and Mr. Kaplan, vehemently disagrees. He says the First Amendment argument is “logically false” adding that, “The law prohibits demanding money to stop embarrassing somebody”.
LASIS zooms in.
Debbie Jo Lashaway was charged with theft in August 2011. The charges against her were eventually dismissed, so she decided to sue the fellow who filed the bogus theft charges against her – and she won. But her mug shot stubbornly lingers on in cyberspace.
Thirty-four-year-old freelance graphic designer Phillip Kaplan’s mugging began when police broke up a party one night in 2011. He was arrested on a charge of failure to disperse.
The charges against him were dropped, but his mug shot remains online. He says he suspects that he’s lost many potential clients because of it. If it’s the first thing that came up in a Google search for him, we’d wager that it’s a certainty that he has a smaller client roster than he otherwise would.
These are just two of the plaintiffs to the class action alleging that that the websites trolling public records for mug shots and posting them on their websites for monetary gain have infringed on the plaintiff’s “right to publicity.” The plaintiffs are seeking “temporary or permanent injunctive relief” and “actual damages, including any profits derived from and attributable to the unauthorized use of an individual’s persona for a commercial purpose.”
Ohio, the state where the class action was filed has held that the right of publicity is an intellectual property right, which allows everyone to control the commercial use of his identity.
However, in 2004 an Ohio District Court ruled that exceptions exist to the right to publicity. The Ohio court cited a 1944 Florida Supreme Court case that stated, “One of the primary limitations upon the right of privacy is that this right does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.” This appears to support the websites case since they should be able to argue that they are serving a public interest by providing easier access to public records.
But one could argue these sites aren’t serving a public interest. Because in that same Ohio case, the court said “public or general interest…does not mean mere curiosity”. The mug shots of people like Ms. Lashaway and Mr. Kaplan seem to pander to the merely curious, the “inquiring” minds that want to know.
Of course, especially these days, the line between “public interest” and “mere curiosity” is affine one. But in a society that values the presumption of innocence, one would hope that no public interest is being served by tarnishing people’s reputations. That’s an easier argument to make for people who were arrested when charges were dismissed. Anyone actually convicted of a crime may crime have a harder time arguing her case.
Lets now take a look at the extortion claim through our legal lens.
The Ohio Extortion statute states that no person shall “expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule or to damage any person’s personal or business repute” for anything of value.
The plaintiffs have support in a 1984 Ohio Court of Appeals case, which determined that just because something is true doesn’t mean that someone can use that truth as a defense to the crime of extortion. In this case, it is true that the individuals were arrested and photographed. As the Court of Appeals might reply — So what?
But, sadly for plaintiffs, posting information garnered from public records on a website and refusing to take it down without payment might not be found to be sufficiently injurious to sustain an extortion conviction. Examples of threats held to be extortion in Ohio: filing a fraudulent bankruptcy petition against a car dealership, and informing parents of a young girl of her past sexual activity, and asking for money to keep silent.
In reality, the websites aren’t exposing anything or anyone. Rather, the mug shots are public records that anyone could find if they knew where to look. The websites are simply putting the pictures into focus, if you will. This might not sound ethical. But it may well be legal.
So Google is taking action. In response to complaints from victims of mug shot highway robbery, on October 3 Google changed its algorithm so that these pay-to-delete mug shot websites no longer appear near the top of Google’s search results. Some credit card companies have decided to discontinue service with these sites, as well. Without the ability to collect payments from individuals wanting their pictures removed, the sites may be forced out of business.
And that might be a better solution, at least in the short term, than any court can offer. Because a picture isn’t worth anything if it doesn’t get the right exposure.