Getting arrested is bad. Getting your mugshot on the nightly news is worse. Getting your mugshot on the Internet forever and in multiple places is the worst. Is it time to rein in commercial mugshot Web sites? Read on to learn more...
Should Mugshots Be Posted Online?
There are legitimate reasons to publish arrest records, including mugshots. The most important reason is to notify the public that the government has seized a citizen. It would be very bad if the government could make people vanish without a trace. Publishing mugshots also helps law enforcement gather evidence of other crimes.
A victim of an unsolved crime may recognize the face of an unknown criminal and contact authorities with additional testimony. On the other hand, publication of arrest records can be unfair to those who are arrested.
“Innocent until proven guilty” is a fundamental presumption of our legal system. Unfortunately, the general public tends to presume that merely being arrested means you are guilty as charged. Many people figure that if you are not convicted, it’s only because you had a slick lawyer or the prosecution didn’t do its job. This presumption of guilt can have devastating effects on employment prospects, housing opportunities, and personal relationships.
Commercial mugshot sites exacerbate this negative aspect of publication by neglecting to tell the whole story. They publish only records of arrests and not their subsequent outcomes. They will not tell inquiring minds whether charges were dismissed or an arrestee was found not guilty at trial. At best, they will remove an arrest record and mugshot from their databases if you can prove that you were not convicted.
How Do Mugshot Websites Make Money?
Some sites make it difficult to contact them with proof, presumably because removing mugshots cuts into their profits.
Mugshot sites make money in two ways. First, ads appear on the sites that presumably are of use to the party who is searching arrest records. One defense attorney was shown an ad for his own practice on a page displaying his mugshot! Second, mugshot sites make money by removing mugshots from their sites.
It can cost $400 to have your arrest record expunged from just one site, and there are many mugshot sites out there. It sounds a lot like extortion, but legal experts say that’s not the case. The crime of extortion involves threatening to do something in the future that will harm the victim if he doesn’t pay you. Mugshot sites have already done their thing, and are demanding money to undo it. It may be wrong, but technically, it’s not extortion.
So-called “reputation services” have sprung up that offer to get arrest records expunged from multiple mugshot sites for even bigger fees. In some especially outrageous cases, the reputation service is owned by the same company that operates the mugshot sites!
Philip Kaplan is fighting this legal but unjust practice in court. The 34 year-old graphic artist has filed a class action lawsuit against several Ohio-based mugshot sites, alleging that their removal fees constitute commercial exploitation of his publicity rights without his permission. If his is successful, damages could be awarded for over 259,000 Ohioans whose mugshots appear on sites that charge fees for removal. Each violation is worth up to $10,000.
Sometimes a letter from a lawyer threatening such a lawsuit is enough to make a mugshot site “waive” its removal fee and delete the offending record. I know of one litigant who took his case against several sites to court. None of the defendants bothered to appear, so he received a default judgment of $10,000 against each of them. Within days of being notified of the judgment, all of the sites removed his arrest records. Collecting the damages is an ongoing struggle, but at least he didn’t enrich his abusers.
Only 17 States have right-of-publicity statutes that enable such lawsuits for private citizens. Some States are considering bills that would require mugshot sites to remove arrest records free of charge if an arrestee is not convicted within a certain period of time, or if he provides evidence of exoneration.
The First Amendment protects the right to publish public records such as arrest and mugshot records. These records need to be publicly available for reasons cited above. But that doesn’t mean you can profit by portraying someone in a false light (by omitting the outcome of an arrest), and profit again by charging the victim for redress of that grievance. Crafting laws that prohibit such practices without infringing upon legitimate publication of arrest records is challenging but necessary.
Got something to say about mugshot malpractice? Post your comment or question below...
This article was posted by Bob Rankin on 27 Jun 2013
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Article information: AskBobRankin -- Mugshot Malpractice? (Posted: 27 Jun 2013)
Copyright © 2005 - Bob Rankin - All Rights Reserved