Toledo Lawyer wins court challenge on Mug Shots
By Kevin Milliken, La Prensa Correspondent
Toledo attorney Scott Ciolek didn't like what he saw on-line: mug shots of his clients in the court of public opinion, long before ever getting their own day in court. The long-storied notion of ‘innocent before proven guilty’ was getting stomped for profit.
So he filed what he hoped would become a class-action lawsuit to stop the practice.
In the age of the Internet, police departments commonly put someone’s booking photo online—available to anyone and everyone as a public record. If you were ever arrested and Google yourself, that picture is likely to pop up when you search for your own name.
Private websites popped up looking to make money on those mug shots. It didn’t matter that the accused may be found innocent later. When Google and other search engines index a mug shot, the image usually ranks on the first page when a search for someone’s name is conducted.
If someone called such a private website to get their name and face removed, they found out the website owner had found an opportunity to make money by charging a "takedown" fee between $99 and $399. Worse yet, people would pay the fee only to find their booking photo pop up on another mug shot website.
Finally removing that photo from all of the websites easily could become a costly, time-consuming and frustrating process-- hundreds of dollars, hours of phone calls and emails.
That “takedown fee” became a “shakedown fee.”
“Here they're using someone's picture to sell them the service of removing that picture from the website,” said Ciolek. “It's extortion to threaten to reveal embarrassing information about somebody and offer the person the opportunity to pay money to avoid that embarrassment, whether it's true or not.”
The Toledo attorney filed the original suit in 2012 on behalf of Debra Lashaway of Holland and Toledoans Otha Randall and graphic designer Phil Kaplan. Two of the three later had charges dismissed, but their mug shots kept appearing on websites. That negative information, of course, can affect everything from someone’s ability to get a job, get a loan, or even Internet dating.
“By keeping these records online with the original charges, searchable today, without providing follow-up information, such as how the case worked itself out, actually puts these people in a false light. That leaves a lot of innocent people to have their mug shot online to be forever associated with domestic violence (or some other charge) for no good reason,” Ciolek explained.
Ciolek sued under Ohio’s right of publicity statute, claiming “wrongful appropriation, without consent, of the names, photographs, images, and likenesses of the plaintiffs for a commercial purpose that benefits only the defendants and to extort money from the plaintiffs.”
The lawsuit alleged posting the mug shot and charging a removal fee was an “intentional and malicious violation” of a victim’s rights and was intended “to subject the individual plaintiff to hatred, contempt, or ridicule, or to damage the plaintiff’s personal or business repute, or to impair the plaintiff’s credit.”
The lawsuit also claimed the trio’s photos had “commercial value, as is shown by defendants profiting from the unlawful appropriation of those images for commercial purposes.”
“If I took your picture and put it on a billboard with a Prius to sell Toyotas, I would be violating your right to publicity,” said the attorney, drawing an analogy to the case.
The lawsuit drew headlines across the country, even resulting in a New York Times article, which prompted Google to change its search algorithms so mug shots would be less prominent.
“Google agreed to demote the organic search results for people's mug shots on some of these websites,” Ciolek explained. “As a result, most people's mug shots cannot be found online very easily and it's no longer as big of a problem as it once was.”
He stated the bad publicity websites have received actually did more to change company policies and state laws than anything else. There are a handful of new laws that have been put into place across the country— in Utah, Florida, and California, in particular—and others are working their way through state legislatures. The California law was written specifically law to prevent web sites from charging people to remove online data.
“The practical effect is the websites we were actually able to sue and serve have totally changed their practices,” Ciolek said. “They are no longer charging for the removal service. That's where it became illegal.”
The lawsuit was eventually settled after it was moved from Lucas County court to federal court. The three plaintiffs shared a $7,000 court settlement and Ciolek's legal team negotiated the removal of the mug shots of all three people. The websites involved also agreed to stop charging a takedown fee to remove the mug shots of other requestors.
The lawsuit never reached the class-action status as hoped, in order to represent more than the 250,000-plus Ohioans affected. But Ciolek’s battle is far from over. His next target is to sue the largest of the websites.
“I have been collecting information and stories and client's names to go after Mugshots.com, which we dismissed out of the last case because we couldn't serve them because we can't locate them. They're not a functional entity (in Ohio),” he explained.
Based on the website, Ciolek believes the company is based somewhere in Central America—so serving someone representing the company with a lawsuit and forcing them to court in Ohio will be very difficult. But he still plans to sue mugshots.com sometime in the next year or so.
The Toledo attorney stated the website issue is different from the printed mug shot magazines that can be found in convenience stores across the city.
“The mug shot magazines do not offer a do-not-publish service. They simply print the photographs as they are released for the current bookings at the jail,” he said. “It would be hard to make the case of putting people in a false light when they're publishing alongside their arrest. Their web presence is simply a reprinting of their published paper.”
Those magazines have a short shelf life—a week or a month—so negative publicity against anyone won't last nearly as long as a mug shot posted on the Internet for eternity.
“Those are probably going to be around for the foreseeable future, until they change the rule about publishing mug shots,” said Ciolek. “When it comes to the mug shots at the jail, those are public record and available to anyone. Most of the Ohio jails, in order to deal with all these public records requests, started putting them online, I believe, to facilitate their staffs from having to pluck these things from time to time.”