What rights do people have to their own mug shots online?

We love seeing unflattering mug shots of our favorite celebrities. Red carpet photos of stars in full makeup are much less interesting than the pictures of those same celebs taken at what may be one of the least glamorous moments of their lives—the time of their arrest.

Charles Luciano's mug shot

Charles Luciano’s mug shot

But when it comes to finding our own mug shot on line, it’s not nearly as amusing.

Mug shots are the booking photos taken by the police at the time of an arrest for the purpose of having a photographic record of the person arrested.

The mug shots are a matter of public record.  Many police districts now post information about arrests on line, along with the mug shots of the arrestees. For those districts that don’t post pictures on line or otherwise disclose the records, members of the public can file a request under the federal Freedom of Information Act (“FOIA”) or state laws to get access to them.

The posting of mug shots is protected by the First Amendment, which states that “Congress shall make no law…abridging the freedom of speech.” There’s now a cottage industry in posting mug shots of Average Joes and then charging a hefty fee if the person wants them removed.

Is that legal?  Even if the First Amendment allows websites to publish the photos, is the charging of a fee also protected?

There are a few crimes where it’s illegal to charge for something that is perfectly legal to give away.  If you know private information about a celebrity, it’s legal for you to give that information to a tabloid. It’s even legal for the tabloid to pay you for your information.

But if you first go to the celebrity in question and say, “you can pay me to keep quiet or else I will give your information to the tabloid”—then it is blackmail.

Blackmail is a crime defined by state laws, which differ, but in general involve the demand for money or other value by the threat of revealing private information.

While it would be legal to post the pictures, one would assume that the quickly growing business model for these mug shot websites would be severely curtailed if the website was not allowed to charge a fee for their removal.

So is it blackmail to offer to take down a mug shot for a fee that’s perfectly legal to put on line?

To date, there have been no successful prosecutions of websites that take down the mug shot for a fee for a few reasons.

First, the information and picture is a matter of public record before it was put up on the websites.  Second, the websites post the mug shots before asking for money so the threat of revealing the information has already passed.

That said, there now several lawsuits filed on the subject of arrestees’ on-line rights that make a few claims.

The first type of lawsuit is that raised in a class action lawsuit filed in Connecticut by people who have been arrested, but not convicted of a crime or whose convictions were later expunged.

While the lawsuit was not specifically filed against a website for the posting of a mug shot, it was filed against an online newspaper that refused to take down an old article that detailed an arrest for a crime. The crime was later expunged, but the story remained on line.

The lawsuit claims that keeping the content available on line is a form of defamation—a false statement that harms someone’s reputation.

Along the same lines, a bill currently being debated in the Florida state legislature would, if passed, require that mug shots of people who are arrested, but not convicted be taken down.

The second type of lawsuit against the mug shot websites is that the sites violated the arrestee’s right to publicity.

That is the right of an individual to control the commercial use of his image so that others don’t get to make money off of it. While those cases wind their way through the court system, the websites continue to do business, much to the dismay of people who aren’t movie stars and whose careers are actually harmed by the publishing of their mug shots.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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