Should a one-time event haunt you for the rest of your life, particularly if we are just talking about a mugshot? Police take mugshots after an arrest. An arrest does not equate to a finding of guilt. Police arrest millions of people a year, and a high percentage of these individuals are either not prosecuted at all or found not guilty of the charges against them.
As a matter of public policy, most states require police departments to publish lists of recent arrests along with photos of the individual in question. Most parents want to know about the arrest of a man down the street for child molestation.
Online businesses posting mugshots on websites find their content in these law enforcement records. These companies argue they are providing a public service.
Generally speaking, the practice of creating mugshot websites is legal. There are no state laws prohibiting this conduct. Individuals have sued in civil court to stop the practice under various copyright and privacy theories, but none has been sufficiently successful to put an end to mugshot websites.
While it may be legal to post images online, charging for the removal of mugshots is another matter entirely. This practice transforms the purported public service into a money-making scheme that comes close to being a form of extortion.
The owners of mugshot websites know full well that a person in a mugshot has little choice but to pay to have their image removed. This lack of choice is particular true where the relevant page of the website appears high in the results of any search on Google, Yahoo or Bing for the name of the person. Does anyone really believe a company performing a background check is going to hire the individual in question if a mugshot is found?
Extortion, however, is the act of obtaining money through force or threats. With mugshot websites, there is no threat. Extortion would only come into play if the site contacted the person in a mugshot prior to publishing the photo and demanded money in lieu of uploading the image to the web. Fortunately, legislators in various states are waking up to this gap in the law and are moving to close it.
California Bans Practice
On August 15, 2014, Governor Brown signed Senate Bill 1027 into law. The bill, authored by Sen. Jerry Hill, D-San Mateo, modifies Section 1798.91 of the California Civil Code by adding language prohibiting the charging of a fee for the removal of booking photos, to wit, mugshots. The law goes into effect on January 1, 2015.
Individuals who are the subject of such booking photos may sue the website in question for the greater of $1,000 or actual damages. The violation occurs when the site charges the person for the removal of a mugshot. Each payment counts as a separate violation, meaning a business with five sites listing the same mugshot faces civil lawsuits for a minimum of $5,000 in damages. Victims can also recover attorney’s fees and legal costs, which adds significant bite to the new law. The law applies only to private companies. Public entities may charge an administrative fee to remove or change a mugshot.
California typically leads the way in establishing new legal requirements for unique online business practices. This leadership is not the case with mugshots. Seven other states have already enacted laws banning the “fee for removal” process:
- New Jersey,
- Colorado, and
One can expect more states to jump on the bandwagon over the next year or two. Unfortunately, there is no effort to pass a federal law at this time.
Search Engines React
Google, Yahoo and Bing have also responded to the mugshot removal controversy in an unusual manner. These companies change the mathematical formula used to rank sites on a frequent basis. In recent changes, the companies have altered their algorithms to drop mugshot listings off the first page of search results. This drop means anyone doing a search for the legal name of an individual will not see the mugshot listing unless they click through to subsequent pages of results. According to a Chitika search engine study, only five percent of people view the second page of search results. Given this low percentage, the lower ranking for mugshot photos eliminates much of the negative aspect of being listed on such sites. Still, anyone conducting a background search can easily find the images.
Payment Processors As Well
As with search engines, payment processors are showing signs of being uncomfortable with the paid mugshot removal process. PayPal no longer is willing to handle mugshot removal transactions and numerous credit card companies are moving in the same direction. While payment processing prohibitions will not kill off the mugshot industry [people can send in checks], it certain makes things just that bit more difficult for mugshot websites.
Future of Mug Shot Websites
The writing is on the wall for mugshot websites. The end is nigh as evidenced by the influx of new laws, search engine ranking downgrades and payment processors balking at handling such business. It is not a reach to suggest for-profit mugshot websites will become a thing of the past in the next five years.
Found your mugshot on a site and need to get it removed? Contact me today for assistance.
Richard A. Chapo, Esq.