There are many legal theories that come into play when determining the legality of Mugshot postings and what causes of action are most appropriate and effective. Some causes of action posted on the internet are really just “internet chatter” of people thinking they are lawyers and others are viable legal theories that have considerable merit.
Florida State, county, and municipal records shall at all times be open for inspection. A “public record” can be any documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of physical form, characteristics or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. In fact, every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian’s designee.
Under Florida law, the “custodian” of said records shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law. This is one reason Florida leads the United States in problems with jail record mugshots. Once the police arrest and book you, your record is public – whether you are guilty or not! This seems unfair, but it is reality in Florida (and most other states).
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Can I sue to get my Mugshot removed from mugshots.com, etc.?
The most viable causes of action (or lawsuits) concerning Mugshot companies are typically brought under the following general legal theories:
Tortious Interference with a Business Relationship – Mugshot reputation damage (TIBR):
Tortious interference with business relationships occurs where the Mugshot website (or tortfeasor) acts to prevent the victim (ie. the Mugshot person) from successfully establishing or maintaining his/her business relationships due to the Mugshot site’s actions. This tort may occur when a first party’s conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. Such conduct is termed tortious interference with prospective business relations, expectations, or advantage or with prospective economic advantage. This is an intentional tort, which means the website company knows it is harming the victim’s ability to properly conduct and advance his/her business but interefers anyway.
Put more simply, if the Mugshot victim is suffering economic damages due to the posting of his/her mugshot, then there could be a cause of action against the Mugshot poster. An example of TIBR, is when false claims and accusations are made against an individual’s reputation in order to drive business away or economically harm the Mugshot victim. Thus, if a website’s information (ie. the criminal charges of the victim) about a mugshot victim is/are in error and the Mugshot image/information is driving business away from the Mugshot victim, there could be a viable cause of action against the site for TIBR.
Legal remedies against Mugshot companies for TIBR can include economic losses (if they can be proven) and even mental distress. Additionally, punitive damages can be awarded by a court if “malice” on the part of the wrongdoer can be established. Thus, placing the Mugshot site “on written notice” of what they are doing is the first step in any case. Equitable remedies may include injunctive relief in the form an injunction that would be used to prevent the wrongdoer from benefiting from any contractual relationship that may arise out of the interference.
Non-payment of royalties
Without mugshots, there would be no mugshot sites. Mugshot websites are using your own personal image to make and promote their site for financial gain without paying you. The argument is that each person’s Mugshot image makes up a whole site and no one image is generally more important than another. All the mugshot images together make up the site. Thus, all the mugshots together make the site profitable and drive traffic to the site - and your image is one of them. The more mugshots, the larger the site traffic. However, the Mugshot victim is not only not getting paid royalties from all the revenue generated from the thousands of people paying to delete their mugshots (and from site advertising), but is a victim who is suffering damages until he/she is pays off the Mugshot poster to remove it! In essense, your image is not being used for legitimate public news information, but rather a piece of a website for which you are not being renumerated.
Mugshot victims are not receiving any royalties for use of his/her image to promote and make up the given site. Thus, your image is a small fraction of any Mugshot site for which it remains on. This type of thing is no different that a photographer taking a picture of a person or a celebrity and pasting it on the front page of a site just to promote it and make money. Some say victim’s should sue these mugshot companies if the site will not pay them a royalty fee or delete the image for no charge.
“If no one stands up for the regular joe and changes the law, this may never stop.”
Libel – Mugshots
Libel is a form of defamation by written or printed words, pictures (ie. your mugshot), or in any form other than by spoken words or gestures. Spoken words is called slander; which is another variant of defamation as whole.
To prove a case for libel in a court of law, a person must prove that the statement was false, second, the person must prove that the statement caused harm, and third, the person must prove that the statement was made without adequate research into the truthfulness of the statement. With regard to suing a Mugshot posting company/website, under a libel theory, a mugshot victim will need to show that the information on the Mugshot site is not only inaccurate but that he/she has suffered economic loss as a result of the mugshot posting. Thus, libel is only applicable when the information about the mugshot victim is in error. To merely say this person was arrested along with a picture is not libel, if it is true. On the other hand, if the same picture (ie. mugshot) says a person was arrested for inaccurate charges, this could be libel. For example, a person was arrested for ”disorderly conduct” and the charges say “possession of child porn.” Sites that post information about people do have a duty to be truthful and not publish false information about a person. Thus, once your criminal charges are dropped, reduced, changed, or you are perhaps aquitted, the Mugshot company may be liable if they do not update or change their information after proper notice.
These are the elements for an ordinary regular citizen to prove libel. However, a celebrity or a public official can have a much harder time. For a “celebrity” or a “public official,” they have a lessor expectation of privacy than the average person.
In the case of a mugshot posting, for damages beyond mere economic loss and mental anquish, the mugshot victim can also allege punitive damages. These are damages in an amount sufficient to punish the Mugshot company. However, punitive damages are not easy to show. The plaintiff must prove the first three elements above and that the statement by the Mugshot company attached to the picture was made with the intent to do harm or with “reckless disregard” for the truth. This “reckless disregard” for the truth is sometimes called “malice.” Mugshot companies sometimes offer little “disclaimers” that they do not endorse the comments or views on their sites, or that their information is not deemed to be “accurate,” or something along those lines. However these little “disclaimers” are not an absolute defense to a libel suit or any other for that matter.
State Statutes – Mugshots
In rare cases, there is a state statute that offers a specific cause of action in the context of mugshot removal. This would be on a case by case basis and far exceed the scope of this website.
Florida Mugshot law
Sadly, in Florida, a bill was proposed that died in May of 2013, that would require Mugshot companies to remove a person’s Mugshot under certain conditions. See www.niemanlab.org/2013/02/a-proposed-florida-law-targets-mugshot-sites-but-hits-journalists-first-amendment-rights