Some potential good news for delinquents, hooligans and convicted felons alike: your mugshots may no longer have to haunt you ’til the End of Days. A suit representing over 250,000 previously arrested Ohioans is attempting to take down the internet’s abundance of privately owned mugshot publication websites. And they may just have a case.
An Ohio man, whose only crime as far as we can tell is a predilection for good times, found his likeness on several of these for-profit websites after being arrested in 2011 for “failure to disperse from a party.” Removing the photos would cost him hundreds of dollars, which he refused to pay.
Scott Ciolek, the plaintiff’s lawyer, is careful to acknowledge that these sites are within their First Amendment rights as a redistribution of public records. But he may have found a way to nullify this general rule. “Anybody who wants to exploit your image for commercial gain has to pay you, just like you’re licensing copyright,” Ciolek said. Damages for these kind of exploitations are $US10,000 under Ohio law.
Peter Scheer, the director of the First Amendment Coalition, seems to agree that the suit has merit:
I think that it’s not a trivial legal claim. In other words, it’s novel and it’s untested. These are new waters and so forth. As I think about, the results may differ in each state. But I do think it is not a ridiculous stretch to say charging somebody to remove one’s mugshot from an internet site infringes that individuals’ right of publicity. That’s a very narrow theory of liability.
But things do get a little murkier. According to Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, the websites will most likely argue that they’re performing a public service, which could protect their refusal to remove the photos.