FORT LAUDERDALE, Fla. (CN) — A South Florida man filed the first lawsuit in the state aimed at enforcing a new law that prohibits mug shot publishers from charging fees for removing unflattering arrest photos from their websites.
B.H., a chiropractor, claims Mugshots.com is sullying his reputation by refusing to remove his arrest photo from its webpage. He sued its purported operator, Openbare Dienst Internationale LLC, and another website, Jailbase.com, on Aug. 1 in Broward County Court.
Florida this year enacted a law that requires mug shot publishers to remove a person’s arrest photo from their websites, at no charge, within 10 days of receiving a formal request for removal. The measure passed with wide bipartisan support and Gov. Rick Scott signed it into law in June.
B.H. seeks damages for unfair trade and an injunction forcing Mugshots.com to take down his arrest photo.
Under the new law, if a Florida court issues a mug-shot-removal injunction and a publisher does not comply, the court can authorize a $1,000-a-day fine.
The law is to take effect in July 2018. It seems to directly target Mugshots.com’s business model: publishing arrest photos en masse and refusing to remove them unless its “unpublishing” service is paid a large fee, several hundred dollars per photo or more.
Mugshots.com’s booking photos often show up highly ranked in web searches. The site has been accused of having little regard for whether an arrestee is found not guilty or if charges are dropped before trial.
Visitors to the site have said that unlike other sites, Mugshots.com does not readily remove mug shots for free even if arrestees are cleared of charges.
The site has defended itself by saying booking photos are public records, and that the site includes a disclaimer that arrestees are presumed innocent until proven guilty. It adds that it is a legitimate source of public information, akin to a news outlet.
Site operators say they are protected under the First Amendment and run a “legitimate, reputable website that takes responsible publishing to new heights.” They say they have no obligation to update their database to include the outcomes of criminal cases.
Mugshots.com has faced a barrage of legal claims, including an Illinois class action that claims it unfairly profits from mug shots, ruining reputations and causing “job loss, broken families and homelessness.”
In that lawsuit, lead plaintiff Peter Fabiola claims that Mugshots.com concealed that the arrest-photo-removal service advertised on its page, which charges hundreds of dollars to remove an arrest photo, is run by the same people behind Mugshots.com itself.
In his case, B.H. claims the owners of mug-shot companies make “massive profits” from the fees they collect from “unpublishing.” The sites are often based offshore, in “small island countries where it is difficult to hold these entities and website operators accountable,” the complaint states.
B.H. says that Mugshots.com’s purported operator, Openbare Dienst, has a registered agent in Belize, but its “principal place of business” is in Nevis, in the West Indies, and it operates in Florida “but appears not to be authorized to do so.”
Co-defendant Jailbase.com also published his booking photo on the internet, B.H. says. The Illinois lawsuit lists numerous dba defendants, including Mugshots.com, Unpublish LLC, Unpublisharrest.com and others.
B.H. was charged with felony grand theft in 2014, accused of improperly withdrawing money from a home equity credit line. He has pleaded not guilty.
The mug shot at issue, however, arose from a contempt order issued by a judge in a separate civil matter, his attorney David DiPietro said.
Crackdown on the Mug Shot Industry
When Florida approved its mug-shot law this summer, it joined more than a dozen states that have passed measures to restrict for-profit publishing of arrest photos.
The Florida law appears to be broader than some other states’ comparable statutes, in that it requires arrest-photo publishers to remove a photo for free upon request regardless of the outcome of the criminal case.
The Illinois class action against Mugshots.com is pending, according to Stuart Clarke, an attorney with the Berton N. Ring law firm.
One plaintiff in that case, Jimmy Thompson, says Mugshots.com demanded he pay nearly $400 to remove an arrest record that stemmed from a case of mistaken identity.
Thompson says that more than 13 years ago police erroneously arrested him on a check fraud charge during a traffic stop, mistaking him for another person with the same name. He says the criminal case against him was tossed out, but for years Mugshots.com refused to honor his request to take down his booking photo or update its webpage to reflect that the arrest was a mixup.
A site representative told him he would have to pay the hefty mug-shot unpublishing fee, Thompson says.
He says he has applied for roughly 40 jobs, but was rejected each time at least in part because employers came across his arrest photo on Mugshots.com. The site took down the photo only after a documentary prominently featured Thompson’s predicament, according to the Illinois lawsuit.
“The point of this industry is to make money off the worst moments of people’s lives. It’s pretty clear that this is an unlawful method of exploitation. That’s what we’re hoping to prove,” attorney Clarke said in a telephone interview.
“We fully expect that at the end of the day, [our clients’] rights will be vindicated.”
The Illinois defendants, among whom is Mugshots.com’s putative owner Sahar Sarid, have an active motion to dismiss the proposed class action.
The Illinois plaintiffs say the site misappropriated their likeness for commercial promotion. The site counters that the mug shots do not give the impression that the plaintiffs endorse or promote a product, and that their claims for a right of publicity therefore fail.
Mugshots.com et al. also claim a First Amendment right to republish public records.
Clarke, however, told Courthouse News that Illinois, which has had a law in place since 2013 to restrict mug-shot-profiteering, “absolutely has a right to regulate commercial speech,” which is traditionally subject to heavier restriction than individual or political speech.
Is It Extortion?
Before Florida approved its mug-shot law, longstanding extortion statutes already prohibited extracting money from people by “maliciously threatening” to release negative information about them.
Mugshots.com however denies that its business model is one of extortion.
“The reference [to] extortion is usually made by those who lack a basic understanding of the flow of events that lead unpublishing requests to be submitted,” the site states in a section dedicated to the matter.
“At no time, the publisher, licensor, or associated agents make contact to request, demand or threaten anyone,” according to the website.
Notwithstanding the site’s prominent display of booking photos in web searches, the site operators say they do not solicit people who have been arrested. They say they only offer to remove mug shots for a fee if someone reaches out to them first, inquiring about unpublishing the material.
Last year, in yet another mugshot publishing lawsuit, other booking-photo publishers, including Justmugshots.com, defeated claims from a Florida woman whose arrest photo had been posted online.
In that case, in Hillsborough County, Florida, the judge found that the plaintiff’s misappropriation-of-likeness claims failed because the defendants’ websites did not use her image to directly promote a product. He also found that the trade claims failed because the sites’ actions were not “deceptive,” as defined by Florida’s Deceptive and Unfair Trade Practices Act.
But that ruling came before Legislature and governor acted, expressly creating civil relief in the event that a publisher does not honor a mug-shot-removal request within 10 days.
Mugshots.com attorney David Ferrucci has not responded to a request for comment, beyond saying he was not aware of the Broward County lawsuit until Courthouse News contacted him about it.