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| Chilling Effects Clearinghouse > Defamation > Weather Reports > Who Owns the Right to Your Face? – Websites Cash In on Internet Mugshots | Location: https://www.chillingeffects.org/defamation/weather.cgi?WeatherID=814 |
Sanna Kulevska, July 08, 2013
Abstract: As a newly born and fast expanded pay-to-delete industry grows, the Chilling Effects Clearinghouse database has recently received an increasing number of take-down notices from various individuals who want mugshots of them taken down from the Internet.
What are the legal challenges complainants face when trying to delete pictures from a time in their lives they would prefer to forget, especially when these pictures have become the currency in a morally obnoxious, but currently legal extortion business?
Imagine being wrongfully arrested and having your mugshot taken and then smeared across the Internet. Then, imagine if soon afterwards, the first result appearing when you search for your name on the Internet is this mugshot. Finally, imagine having to pay hundreds of dollars to a private company to have the picture removed from their website - even if it may be long gone from the police database. For many people this is a reality that can be both detrimental to their reputation and have long-lasting consequences when they are trying to get a job. It can happen to anybody. To you. Tomorrow. Imagine that.
The procedure is simple. The mugshots are downloaded legally from the police websites, and are later on published on the mugshot companies' websites with personal information and crime records. Even if the consumers pay the required "take-down fee" to get the mugshots removed from one website, the same picture is most likely to repeatedly re-appear on other websites. Like playing a game of "Whac-A-Mole," it may seem impossible to ever successfully get the mugshot completely removed from the Internet. Not only that, the mugshot businesses are currently strongly protected by their First Amendment rights. As a consequence, many people give up in their struggle to become fully deleted from the Internet. "The websites probably have a First Amendment right to publish the mug shots because this is lawfully obtained public information," says Ohio State University Moritz College of Law professor Daniel Tokaji. And "the practice of requiring payment to have them removed is unsavory, but probably not illegal."
Defense attorney Peter Aiken argues that arrestees through the rapidly developing mugshot industry, are facing a modern type of punishment: that the punishment does not end when people leave jail anymore. Now it will follow you forever: "Once something gets on the Internet, that booking photo or mugshot photo is going to haunt you for the rest of your life." In addition to the criminals who will still see their mugshots online even after they have served their sentence, this is in fact also the reality for people who are neither charged, nor convicted for any crime. By not having stricter regulations for the mugshots when they are published online, this might turn the idea of innocent until proven guilty upside down, meaning that a mugshot subject may well always remain "sort of guilty". This inability to delete one's past on the Internet could possibly lead to devastating consequences for online reputation.
A permanently damaged reputation has become reality for one of the plaintiffs in a recent lawsuit against mugshot companies in Ohio, Philip Kaplan of Toledo:
"I don't get a lot of callbacks," he said. "One of the first things people do is type a name into Google. I think it's affected my opportunities at more gainful employment. It affects a lot of peoples' chances at employment." Although his 2011 charge for failure to disperse was dismissed earlier this year, his mugshot remains online. "The worst thing about [it] is the exploitative nature of it." He also suspects that some potential clients have decided not to do business with him after looking him up online.
As if one's online reputation was not harmed enough by having mugshots appearing on the websites, it is not merely the straightforward moneymaking mugshot sites that cash in on the mugshot craze. Many websites make money from ad revenues via Google AdSense banners, while others work in collaboration with mugshot-removal services to boost profits. Florida.arrests.org, for instance, has given the people behind RemoveSlander.com a URL through which they can click a button and make a PayPal payment of $19.90, which florida.arrests.org keeps. RemoveSlander.com retains the remainder of its $399 fee. To take down mug shots from three websites, RemoveSlander charges $699, and for six websites the price is $1,299. In addition to the exploitation of mugshots for business profit, these pictures are being used for entertainment purposes. Countless mainstream organizations, from sheriff's departments to newspapers, have created outlets for average citizens to come and poke fun at their arrested peers, in several "Mugshot of the Day" voting actions online.
Wanda Dallas, who works at the Sheriff's Office in Fulton County, GA, expressed her concern regarding the rapidly growing mugshot misappropriation the following way: "We all know it is wrong. Fundamentally we know it is wrong. But in a country that just gives people access to information and in an age where information is available so quickly - how do we stop this?"
One solution has been presented by lawyer Scott Ciolek, who stresses that even if the mugshot sites are within their First Amendment right as a redistribution of public records, this general rule can be nullified by the fact that they are requiring money to have it taken down: "Anybody who wants to exploit your image for commercial gain has to pay you, just like you're licensing copyright." According to the right of publicity doctrine, every individual has a right to control and profit from the commercial use of his or her name, likeness and persona.
Florida Representative Carl Zimmerman has proposed a House Bill (HB) 677 requiring all websites to unpublish mugshots within 15 days of being notified that the charges did not result in a conviction. If the website operator does not follow this requirement, fines will follow as well as a potential defamation lawsuit if they are not unpublishing the mugshot for free with 45 days of notice. The mugshot companies have responded that the proposed legislation infringes upon the First Amendment protections of free press and speech, and that the bill is so broad that it would not merely encompass mugshot websites, but also all websites which publish arrest records such as Westlaw, LexisNexis, and other legal databases.
As the physical world gets more and more intertwined with the cyber world, online reputations have started to affect lives outside the virtual world. HB 677 is a good start to keep our reputation remained unchanged independent on our status being online or offline, However, this proposal is in one state only. The mugshot industry is likely to expand until consumers pressure their elected officials for improved laws which better balance the privacy rights of consumers with the First Amendment rights of the mugshot websites.
You may wonder if there is any limit to the potential exploitation or negative consequences of publishing mugshots online. Sadly, the answer is no, it is only getting worse. Just as there are two opposing perspectives on the public good served by publication of the mugshots, some "enterprising" individuals have taken it upon themselves to play a thoroughly despicable Janus, and get involved in both their posting and removal. It was recently revealed that some players in the "Whac-A-Mole" game of controlling online reputation are actually participating as both the mole and the killer, to the detriment of those whose reputations are actually at stake. When the seemingly trustworthy lawyer who offers to help the helpless by removing their mugshots is in real life actually the man responsible for the posting of the mugshots, what then?
Where do we draw our free expression line now?
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