On June 16, 2017, Florida Governor Rick Scott signed legislation to regulate the online mugshot industry, preventing websites that publish booking photos from charging a fee to remove them.
South Carolina passed a similar law, known as the “Mugshot Extortion Bill,” in February 2016. As former state Senator Paul Thurmond said at the time, companies that publish mugshots online “literally extort hundreds of dollars from people to remove [them]. In my opinion, that’s just wrong.” Thurmond is the son of the late U.S. Senator Strom Thurmond.
PLN has previously reported on the extortion tactics of websites such as mugshots.com, which charge people to remove their booking photos from websites even when the criminal charges were dismissed, they were acquitted or the information posted is inaccurate. [See: PLN, Aug. 2014, p.48; Oct. 2012, p.36].
The new laws in Florida and South Carolina require mugshot sites to remove a person’s photo upon request and prohibit them from charging a fee to do so. The latter practice is the subject of a class-action lawsuit filed in 2016 in Illinois against mugshots.com – which posted the booking photos – and a related business called unpublisharrest.com, which allegedly charged “takedown” fees of as much as $15,000 to remove the embarrassing mugshots.
Illinois Attorney General Lisa Madigan has intervened in the suit, saying the state “has a substantial interest in protecting citizens against financial exploitation” that “preys upon the stigma associated with being arrested, convicted or imprisoned.”
Mugshots.com and unpublisharrest.com, which are owned and operated by Julkisuudessa, LLC, incorporated in Nevis, West Indies, “used photographs from the most humiliating moments in people’s lives to shake them down for money,” Madigan’s office said in a November 2016 court filing. “They run a commercial enterprise built to obtain money from people whose notoriety consists solely of having a criminal record.”
The attorney general called the company’s business model an “extortionate practice” prohibited by a 2014 state law and unprotected by the First Amendment. The class-action suit remains pending, and the U.S. Department of Justice has also intervened. See: Gabiola v. Keesee, U.S.D.C. (N.D. Ill.), Case No. 1:16-cv-02076.
“Freedom of the press does not include the right to use incorrect or wrong information to profit off of the worst moment of another person’s life,” said Stuart Clarke, an attorney with the Chicago law firm of Berton N. Ring. “The First Amendment is not a blanket protection for everything you do.”
The 2014 Illinois law effectively prohibits sites like unpublisharrest.com from operating in the state by making it illegal to charge takedown fees. But since there is no companion law requiring free takedowns upon request, people whose mugshots remain online find themselves with little recourse.
The Bluhm Legal Clinic at Northwestern University’s law school is trying to get the names of almost 20 exonerated former prisoners off mugshot websites, said Samuel Tenenbaum, clinical associate professor of law. Among them are Terrill Swift and Jacques Rivera, who spent 15 years and 21 years in prison, respectively, for crimes they didn’t commit – yet five years after being released their booking photos remain online.
The new laws in Florida and South Carolina are designed to close this loophole; they also provide for civil penalties.
Most recently, New Jersey enacted similar legislation to crack down on exploitive mugshot websites in July 2017, when Governor Chris Christie signed a bill that allows people to sue in state court if they must pay to have their booking photos removed.
“These website operators put these mugshots online just to extort people and charge them to remove their photos,” said state Assemblyman Raj Mukherji. “That serves no public information purpose. It’s a shakedown.”
Mugshot-related legislation has been passed in at least a dozen other states according to the National Conference of State Legislatures, including Georgia, Oregon, Texas, Utah, California, Colorado, Missouri, Wyoming, Maryland, Virginia and Kentucky. Typically, such laws do not prohibit the posting of mugshots, only extortionate fees for takedown requests.
Many mainstream media agencies, including newspapers and TV stations, also post mugshots as a form of “click bait” – online content intended primarily to showcase advertising on the same page, in hopes that viewers will navigate to it. They do not, however, charge fees to remove the photos in cases where defendants are found not guilty or the charges against them were dismissed.
Mugshots are usually considered public records under state public records laws, though not on the federal level. [See: PLN, May 2017, p.50].
Sources:Chicago Tribune, www.nj.com, www.classactionagainstmugshotwebsites.com, www.ncsl.org
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