Mug Shot Website Must Face Publicity-Rights Class Action

CHICAGO (CN) – A federal judge ruled Tuesday that a class of arrestees can sue Mugshots.com on claims that it makes money by posting embarrassing booking photos online and charging excessive fees for their removal.

U.S. District Judge Sharon Coleman gave the class the green light to move ahead on claims that two websites are used for commercial purposes and not public interest because one advertises services and links to a sister site that generates revenue by charging fees to remove arrest photos.

“It is not advertising use in the traditional sense, but Mugshots.com promotes itself with plaintiffs’ likenesses (and others), by using the embarrassing nature of an arrest to promote the website, draw consumers, and if it is their photo or likeness, provide an easy link to removal for a fee. There are no allegations in the complaint to suggest that any of these plaintiffs provided consent. Plaintiffs here clearly allege that defendants are using their likenesses, in the form of arrest photographs, without their consent to solicit enrollment in the subscription removal services,” Judge Coleman wrote in an 18-page ruling. (Parentheses in original.)

Illinois residents Peter Gabiola and Antonio Hammond and Florida resident Jimmy Thompson have spent time in jail and say they discovered their arrest photos and other public information was posted on Mugshots.com. The three men are the lead plaintiffs in the class action.

Gabiola and Hammond are former inmates of the Illinois Department of Corrections.

Thompson was arrested in 2003 in Orange County, Fla., and detained for eight days on charges of check fraud. Authorities later determined they had arrested the wrong Jimmy Thompson and dismissed the charges.

All three men claim they cannot secure employment because their photos are posted on Mugshots.com.

They say Mugshots.com provides a link to Unpublisharrest.com, a fee-based mug shot removal service.

Sahar Sarid and his associates Marc Gary Epstein and Thomas Keeseed, along with various LLCs, operate both sites from Fort Lauderdale, Fla., court records show.

According to the original lawsuit, the websites are a single enterprise and Sarid concocted a phony sale to a “Michael Robertson” to hide his ownership of the websites.

Mugshots.com offers a searchable database of arrest records and mug shots gathered from Department of Corrections websites and through Freedom of Information Act requests for inmates’ records from government-run websites.

Sarid allegedly omits from his requests that the information will be used for commercial purposes and makes no effort to confirm the  of various reports.

Along with arrest photos, Mugshots.com includes links titled “Get Full Criminal Profile” and “Get Criminal Background Checks.”

Part of the website’s disclaimer states: “If you were found guilty; you still may qualify to be unpublished.”

In an effort to further profit from website advertisers, Sahid created Unpublisharrest.com, a “takedown service” that promises to remove mug shots for a fee, according to the complaint.

The removal service, which does not guarantee updating or correcting inaccurate records, earns substantially more advertising revenue than Mugshots.com, the plaintiffs say.

“There are advertisements on Mugshots.com record pages promoting Unpublisharrest.com and links to a checkout page enumerating the tiers of pricing for the removal service. In some instances, a record page on Mugshots.com has as many as three advertisements for or links to Unpublisharrest.com,” Judge Coleman’s ruling states.

Gabiola claims he lost his job after co-workers discovered his Mugshots.com photo, which was still available on the site even though he had completed his sentence.

A representative from the takedown site allegedly told him he would have to pay $2,000 plus fees to have his image removed, and $15,000 to have his entire profile deleted.

Hammond says he is unemployed due to inaccurate information listed about him on the site.

Another representative tried to charge Thompson, who is also jobless, $399 to update his report to show he was falsely arrested, he claims.

Judge Coleman ruled Tuesday that the website operators’ actions are not protected by the First Amendment because they were economically motivated, which falls under the U.S. Supreme Court’s definition of commercial speech.

“As pleaded, the use of the arrest photos and records in conjunction with what appear in the complaint as buttons linking to a removal service are reasonably construed as proposing a commercial transaction,” she wrote.

But Coleman tossed out the plaintiffs’ unfair credit reporting and RICO claims because the sites are not selling their information to third parties, nor did they threaten the three men or try to extort them.

The judge ruled Thompson can pursue claims for violation of Florida’s Right to Publicity Act and Deceptive and Unfair Trade Practices Act.

Gabiola and Hammond can proceed on allegations of violation of the Illinois Mugshots Act, and Gabiola can also move ahead on his right-of-publicity claims.

Mugshots.com and Unpublisharrest.com remain up and running, despite having licenses revoked in Florida and Wyoming and lack of good standing in Delaware.

Both websites call themselves internet-based reputation management services.

In addition to the Illinois case, a similar lawsuit was filed last month in Florida by an anonymous chiropractor who claims Mugshots.com is sullying his reputation by refusing to remove his arrest photo from its webpage.

That complaint was the first to be brought under a new Florida law that prohibits mug shot publishers from charging fees for removing unflattering arrest photos from their websites.

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