Insight

Smile! You Have New Mugshot Rights

A handful of enterprising companies have discovered that these portraits of distress have great value because they are public records, are not protected by copyright laws, and can be posted on the Internet to persuade the portrayed to pay dearly to take them down.

Mugshot Rights
TJ

Thomas R. Julin

June 28, 2017 11:34 AM

After you are arrested and booked into jail, you probably will not be looking your best. In fact, you may never look worse. Still, your jailor will insist on taking a picture of you for the files.

A handful of enterprising companies have discovered that these portraits of distress have great value because they are public records, are not protected by copyright laws, and can be posted on the Internet to persuade the portrayed to pay dearly to take them down.

Mugshots.com is the most well-known entrepreneur in this space, and if you take a moment to review its site, you will see that it claims it is doing a great public service. It explains that it has created an archive that can be conveniently used to confirm whether a paramour or employee has an arrest record.

You also can learn from the site that persons arrested are presumed innocent until proven guilty. That disclaimer provides no solace to those who are most distressed by their appearance when they definitely were not ready for their close-ups.

The Florida Legislature came to the rescue this year, unanimously passing a bill similar to laws passed in several other states that gives arrestees the right to demand removal of their mugshots from the web. Governor Rick Scott signed the bill on June 16, 2017. But before firing off your demands, there are several things you need to know.

The law does not become effective until July 1, 2018. That gives companies one year to set up compliance mechanisms. It also gives them something else: time to launch challenges to the constitutionality of the law. There is quite a good chance the law will be found to violate the First Amendment because the U.S. Supreme Court has been tough as of late on all laws that restrict speech, and this one clearly does. Protecting people from the embarrassment of how they look probably won’t hold up as a sufficient justification of this law.

But if it does, the law has quite a few problems.

It does not apply to websites unless they solicit or accept payment to remove the photographs. That means any website can avoid the law by changing its business model so that it relies solely on advertising to support its activities. If that works, this could cause those who supported the bill to rethink its wisdom, because it simply will make it impossible to have a mugshot taken down quickly for a small fee.

If websites continue to demand takedown fees, the new statutory takedown process will be cumbersome and expensive for those that try to use it. It must be started with a written demand to the registered agent of the person or entity who published the photograph. Not all website operators have registered agents, and finding them can be tough when they do.

The demand must be sent by registered mail—email will not do—and the demand must include both proof of identification of the person arrested and the corresponding mugshot. The law doesn’t specify the type of identification required.

Once a proper demand is received, the website has 10 days to take the mugshot down. Within that time, friends, neighbors, employers, and, of course, family members will be free to delight in downloading the picture and posting it on Facebook, Twitter, and LinkedIn.

If a takedown demand is ignored, the new law provides a right to sue for an injunction. Many will want a lawyer to help with that, and a reasonable attorney’s fee may be much more than the takedown fees the mugshot websites have been charging. Once a lawsuit is filed, it could take weeks or months to produce results.

If an injunction is obtained, it won’t be much good if it can’t be enforced. So the new law says judges can impose a $1,000-per-day fine for noncompliance and attorney’s fees. But the person who sued will not be entitled to keep any fine imposed. Fines must be turned over to the State of Florida. And the attorney’s fee awarded can be much less than the fee charged.

So my advice when you are next booked into a Florida jail is: smile! Not because you have a new right to have your mugshot taken down; smile because you will want to look good in a mugshot that may be out there forever.

-----------------------

Thomas R. Julin is a shareholder in the Miami office of Gunster, Yoakley & Stewart, P.A. His practice focuses on First Amendment litigation.

Related Articles

What Are the Anti-Protest Laws in the U.S.?


by Jim Owen

The First Amendment includes the right to assemble. But how are the rules surrounding protesting changing?

Anti-Protest Laws in the U.S.

Why Was a 6-Year-Old Arrested at a Florida School?


by Christopher L. Marlowe

The Unintended Consequences of Zero Tolerance

Why Was a 6-Year-Old Arrested at School

Internet Speech in the Crosshairs


by Ari Holtzblatt and Jamie Gorelick

Charges of anti-right bias notwithstanding, online platforms are on solid ground when they defend their policies and procedures as neutral and protected by the First Amendment.

Is Internet Speech Protected?

An Interview With Jean-Paul Jassy of Jassy Vick Carolan


by Best Lawyers

The 2019 "Lawyer of the Year" winner for First Amendment Law in Los Angeles speaks about his career highlights.

Meet the Attorney Who Represented Mark Boal

In the News Weekly Roundup: Los Angeles Times Wins First Amendment Fight


by Best Lawyers

A roundup of recent news of listed lawyers across the country.

Los Angeles Times Wins First Amendment Fight

Michael Baughman, Pennsylvania’s 2018 Lawyer of the Year in Media Law


by Abigail Rowe

An interview with Michael Baughman, who was recognized with the 2018 "Lawyer of the Year" award in media law.

Michael Baughman, Pennsylvania’s 2018 Lawyer

In the News: Georgia


by Nicole Ortiz

A summary of newsworthy content from Colorado lawyers and law firms.

In the News Georgia 2018

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky