There is a new and disturbing industry that has sprung up: publishing mugshots of people and then charging to have those pictures taken down. One individual in the article below, Jaclyn Lardie, paid hundreds of dollars to remove the mugshot from a college drinking arrest only to have the picture appear on other sites. States have moved in to try to legislate protections. While invented in its standard form in 1888 by Alphonse Bertillon (shown here), it took the Internet to make a rather shady business out of the millions of mugshots generated in criminal arrests great and small.
Various websites have also sprung up to help people deal with such embarrassing pictures. It has become a cottage industry as people find themselves in the post-pay-post cycle.
There is a class action against sites like Justmugshots.com where plaintiffs are alleging a violation of the right to privacy in the use of their images for profit without their consent.
In today’s Internet age, these pictures come back to haunt people when they are searched in Google. Seven states — Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming — have passed laws to curtail the practice but Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional.
That does present an interesting question. This does look like protected speech to me. This is a government publication that is available to the public. These photos are routinely published by the media and on sites like this one. Of course, these sites just published all mugshots, which reduces the newsworthy element. However, they can claim that they are a popular resource to people searching stories and personal investigations. Sometimes such unknown individuals later become newsmakers for good or bad.
The laws and lawsuit pit free speech advocates against consumer protection advocates in a difficult conflict.
A typical statute (out of Texas) focuses on sites charging more than $150 “or more or other comparable value” to remove such pictures. On one hand, the law creates useful requirements of posting contact information for people to use to challenge the accuracy of such photos. However, the creation of a new crime for such postings raises difficult free speech issues in my view. There is an obvious good-faith concern over extortion when these sites are all too willing to take down photos for a price. That cuts against the notion that they are creating a public resource and service. Moreover, these sites can fold in claimed administrative costs like salaries to argue that they are not making a profit. The line drawing presents some interesting and difficult questions.