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The publishing of mugshots online has become a big business for some unscrupulous internet entrepreneurs. Sadly, for the general public, it's more of an annoyance than anything else. But one lawsuit might be changing the landscape for these businesses that seemingly just look like blatant extortion schemes.
The general business model looks something like this: website/business scrapes public law enforcement databases and websites to obtain mugshot photos and arrest information. Scrapped information gets posted online publicly. When an arrestee finds out their mugshot and arrest info is published online, they must pay the web-publisher to have their information corrected, or removed.
Balancing Free Speech With Commercial Embarrassment
In a current federal case where a few plaintiffs from different states are suing Mugshots.com and unpublisharrest.com, and alleging that the websites are violating various state laws. Basically, individuals find their mugshot on mugshots.com, then next to the picture, they find advertisements for unpublisharrrest.com which promises to remove mugshots and arrest info from mugshots.com for a fee. And if that didn't smell bad enough, unsurprisingly, both sites are owned by the same person.
As the district court explained in denying the website's motion to dismiss, publishing mugshots for profit, rather than for the public interest, is not protected by First Amendment because it's commercial speech.
State Mugshot Laws
The case was allowed to proceed under both Florida and Illinois statutes that prohibit this sort of online mugshot shenanigans. Claims under RICO and the Fair Credit Reporting Act were dismissed. However, the state laws under which this case will go forward, which are rather similar in both states, essentially make it illegal for a website to accept a fee to remove or change criminal records they have published.
The Illinois law states that:
"It is an unlawful practice for any person engaged in publishing or otherwise disseminating criminal record information through a print or electronic medium to solicit or accept the payment of a fee or other consideration to remove, correct or modify said criminal record information."
In addition to these specific statutes, violations of publicity rights have also been deemed sufficient to proceed by the court, and may be among the strongest claims.