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Mugshot Lawsuit Involving Florida Continues

Tagged under: News USA Florida Illinois Court System Re-entry
By Omid Ghaffari-Tabrizi on January 6, 2018.

Omid Ghaffari-Tabrizi found this photo of the Northern District of Illinois Eastern Division Courthouse.

In a case filed in the United States District Court for the Northern District of Illinois, Eastern Division, two residents of Illinois and one resident of Florida sued Mugshots.com, UnpublishArrest.com, UnpublishingPartners.com, and the various individuals and companies involved with the operation. The founder of Mugshots.com is also the founder of UnpublishArrest.com and UnpublishingPartners.com. The latter two mugshot removal websites were created specifically to make money off of people who wanted their mugshot removed from the mugshot posting website.

The three plaintiffs were suing because they claimed that their lives were ruined by these mugshot websites. They couldn't keep jobs or housing, with one plaintiff stating he was "a month away from homelessness". By including a plaintiff from outside of Illinois, the hope is that a class-action lawsuit can be instituted as a result of this lawsuit, letting anyone in the country join.

The plaintiffs made nine different claims against the Defendants, stating that posting these mugshots violated the following laws and provisions:

The mugshot websites, various companies, individuals, and the founder filed motions to dismiss, and on September 26, 2017, the Honorable Sharon Johnson Coleman entered an order granting the Defendants' motion to dismiss on counts II, IV, V, VI, and VII but denying it on I, III, VIII, and IX. This means the Illinois defendants could move forward on the violations related to the IRPA and the Illinois Mugshots Act and the Florida defendant could move forward on the violations related to the FRPA and FDUTPA. The mugshot posting Defendants won on the charges related to the ICFA, RICO, and the FCRA.

First Amendment rights for mugshot sites

The mugshot posting Defendants argued that what they are doing is protected by the First Amendment of the United States Constitution. The Court, however, disagreed with this argument, stating that with the detailed and thorough facts provided by the plaintiffs, the plaintiffs have to prove that what they're doing is non-commercial speech. In fact, the Court stated that "the mugshots themselves are advertisements for the removal service, which is the far more lucrative enterprise."

To argue their First Amendment rights, the mugshot sites tried to use Nieman v. Versuslaw, 512 Fed.Appx. 635 (7th Cir. 2013), a case where a company was charging for access to court records. The Court here said that not only does that case not hold sway here (it is nonprecedential), it also doesn't apply because in Nieman, the revenue was generated from access to the records, not from using "records to generate revenue for a service as is the case here." The Court concluded that they are "unpersuaded that the websites at issue are entitled to complete protection of the First Amendment as a matter of law."

Use of a mugshot for commercial purposes

In terms of the Right of Publicity related counts (IRPA and FRPA), the mugshot websites tried to argue that they are allowed to use people's mugshots without their consent because it falls under the public interest exception. However, based on the way in which these mugshots are used to advertise the mugshot removal services, the Court found the use of these mugshots to be for advertising purposes as a matter of law.

The Court was unconvinced by these arguments. They pointed out that the mugshots sites themselves generated very little revenue, but the mugshot removal sites generate "substantial revenue through the profile removal service." In fact, the Court continued, stating that "everything, including the articles Mugshots.com are click-bait to increase consumers and to embarrass the profiled arrestees and in turn to drive revenue to the removal service."

Comparing mugshot sites to shows like COPS

In reality shows like COPS, where police are followed and their arrests broadcast on TV, cases like Best v. Berard, 776 F.Supp.2d 752 (2011) outline how they are allowed to broadcast these events without a signed waiver from the person being arrested. The difference between those shows and mugshot sites, according to the Court, is that the mugshot sites post the mugshots for the express purpose of embarrassing the individual, forcing them to pay to remove them. This is a violation of the individual's right of publicity.

A case in the Middle District of Florida, Bilotta v. Citizens Information Associates, LLC, 2014 WL 105177 (M.D. Fla. Jan. 10, 2014), found the same thing as the Court here. Specifically, the Florida Court found that publishing mugshots was not protected under the First Amendment and a similarly filed motion to dismiss should fail. They reached that decision by finding that the use of the plaintiff's "likeness (a mugshot) for commercial purposes (the removal of the arrest photo for a fee)" was sufficient to state a claim in the state of Florida under the right of publicity statute.

The State of Illinois argues against mugshot websites

Under Illinois' Mugshots Act, it is unlawful "to solicit or accept the payment of a fee … to remove, correct or modify said criminal record information." Mugshot photos are included in the definition of criminal record information under the law. The Court said that law's language "suggests a violation occurs by the mere solicitation of payment."

The State of Illinois even joined in the case, filing as an intervenor, arguing that the mugshot websites "use of plaintiffs' criminal record information places plaintiffs' in the position of choosing to pay removal fees or suffering damage to their reputation, "causing financial hardship by limiting employment opportunities."

How posting mugshots cause damages in Florida

The plaintiff from Florida did not actually pay for removing their mugshot from the website, so the mugshot websites attempted to argue that they didn't suffer "actual damages" that are required under the FDUTPA. The Court agreed, and pointed to Kelly v. Palmer, Reifler & Associates, P.A., 681 F.Supp.2d 1356, 1366-67 (S.D. Fla. 2010), which outlined how the state of Florida differentiates between what is required for a claim of damages and a claim for injunctive relief under the FDUTPA.

The mugshot websites also argued that the plaintiff from Florida couldn't seek injunctive relief, since their mugshot was no longer on the website. The Court, however, pointed to the Kelly case, which itself quoted Nat'l Advertising Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005), stating that "[v]oluntary cessation of allegedly offensive conduct moots a claim only ‘if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.'"

The plaintiff from Florida pointed out that his mugshot was removed only after he appeared in a documentary about the way in which mugshot websites operate. He also outlined how he applied for over forty jobs between 2012 and 2016, and was rejected from each one. This was enough for this Court to find that he suffered enough to be able to file a claim. This was based on Klinger v. Weekly World News, Inc., 747 F.Supp. 1477, 1480 (S.D. Fla. 1990), which stated that "A professional writer's loss of his ability to publish clearly constitutes an injury sufficient to permit him to resort to the injunctive remedies of the statute."

What's next in this case against the mugshot industry?

Because of the fact the Court allowed counts I, III, VIII, and IX to continue, the plaintiffs have a chance to prove violations of the Illinois Right of Publicity Act, the Illinois Mugshots Act, the Florida Right of Publicity Act, and the Florida Deceptive and Unfair Trade Practices Act. It is also interesting to point out the Court's rejection of the mugshot industry's most commonly used argument: protection under the First Amendment.

While the three original plaintiffs should be able to continue with their case, there are a few questions the Court will have to look at now before deciding whether it can officially proceed as a class action. These include:

  • How many people are affected?
  • Do class members share common questions of law and fact?
  • Are the plaintiffs' legal claims typical of all class members?
  • Is the potential class adequately represented?

Cases like this can't move fast enough for the people affected. However, being that this is in Federal Court rather than a State Court means it will move a bit faster. Federal Courts have stricter schedules and a lot less volume. But it is still important to realize – only recently has the Court been able to get through the arguments related to whether this case should move forward or not. This case was filed on February 9, 2016 and this decision was filed on September 26, 2017.

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