In August 2011, Debbie Jo Lashaway was charged with theft. She was arraigned and booked in Lucas County, Ohio, and her mug shot was taken.
Seven months later, the charges were dismissed and her record was sealed — effectively removing the theft charge from her public record. Six months after that, she even won a judgment against the man who accused her of theft, declaring the charge bogus and awarding her thousands of dollars in damages.
But just a few weeks ago, she found out her mug shot was still online, posted on a handful of websites — sites like bustedmugshots.com and justmugshots.com. To get her photo stripped from the website — and search engines like Google — they wanted her to pay between $100 and $500.
Horrified, she called her lawyer, Scott Ciolek. Now, Ciolek's suing the websites, not for making his clients look like criminals, but because they are making money by exploiting his clients' images.
"The lawsuit that we filed in Ohio challenges these websites on the grounds of publicity rights, and that's like a copyright or patent that an individual has in their own persona," Ciolek told weekends on All Things Considered host Guy Raz.
Publishing a mug shot is not the actual problem, he says. It's when a profit is made from the publishing that it becomes an infringement on publicity rights. There are some exceptions — news outlets, for example, are allowed to publish photos because they are considered newsworthy public affairs.
But the mug shot websites Ciolek is targeting with his lawsuit, he says, are publishing them for the purpose of charging people to have their own picture removed, and they also use mug shots in banner ads to draw people to their websites.
Ciolek has added another client, Philip Kaplan, to the suit. Kaplan was arrested for failure to disperse from a party in the Old West End arts district in Toledo two years ago. His case was also dismissed, and his record sealed, though his arrest photo remains on a handful of mug shot websites.
"There are hundreds of stories we're received since we filed the lawsuit two weeks ago, about people who've been totally exonerated of all crimes," Ciolek said. "And their mug shots are as present to this day on these websites as people that are guilty of very serious crimes."
The consequences, he says, can be severe. Phillip Kaplan, a freelance graphic designer, has had trouble getting work, and Ciolek says part of it is that his mug shot shows up in a quick Google search potential clients would do. Other people, Ciolek says, have had trouble renting office space or apartments.
Most mug shot websites do offer to take down arrest photos for free for people who, like Lashaway and Kaplan, have had their charges dismissed. But it doesn't usually include a deep scrub against of the images, so they'd still pop up in Google searches. And it doesn't stop other mug shot websites from publishing the pictures.
Four mug shot websites are named in the suit — justmugshots.com, bustedmugshots.com, mugshotsonline.com, findmugshots.com — as well as mugremove.com, a reputation clearing site.
Ciolek filed the case as a class action suit he hopes will include the more than 250,000 people in Ohio whose mug shots have appeared on these sites. The state allows for up to $10,000 in damages for each individual if Ciolek wins.
GUY RAZ, HOST:
A little more than a year ago, Debbie Jo Lashaway was charged with theft. She was arraigned and booked in Lucas County, Ohio, and her mug shot was taken. And then seven months later, the charges were dropped and her record was cleared. She even won a judgment against the man who accused her of theft.
But just a few weeks ago, she found out her mug shot was still online. It was posted on a handful of websites, sites like bustedmugshots.com and justmugshots.com. And to have them removed, she'd have to pay those sites between 150 and $500. So she called her lawyer, Scott Ciolek. And Ciolek decided to file a class action lawsuit against those companies.
SCOTT CIOLEK: The lawsuit that we filed in Ohio challenges these websites on the grounds of publicity rights. And that's like a patent or copyright that an individual has in their own persona. And although they are public records and there are exceptions made for newsworthy and public affairs, commercial use of someone's persona without their permission is an infringement of their publicity rights.
RAZ: What if they weren't charging money to remove the photographs? What if they were just showing the photographs and that was it?
CIOLEK: Hypothetically speaking, if a company were to just have an archive of all the arrested people and they put them to no commercial use but they were just available for the public inspection, that would take it outside the rights of publicity.
RAZ: Let's say you pay one of these companies and you pay them to remove your mug shot. Do you have to pay them all?
CIOLEK: Yes. We've gotten a number of reports back from individuals who found that once they paid one website the next week they'd find their picture on two different websites. And because they're officially not affiliated, they have to pay off the other two websites.
RAZ: Now, what if, you know, say, I'm a law-abiding citizen. I've never been arrested or had a mug shot taken of me. Why should I care if mug shots are being posted online?
CIOLEK: What we're talking about in my case is property rights. No matter if you've got a lot of money in a house or if you owe nothing, you still have rights to control how your image is being used in a commercial purpose. And everyone has that right. So when websites like this are chipping away at the value of that right, they'd chip away at the value for everyone.
RAZ: So if you are arrested and a mug shot is taken of you and then you are later proven to be innocent, that mug shot is not wiped from a database?
CIOLEK: There are hundreds of stories we've received since we filed the lawsuit two weeks ago about people who have been totally exonerated of all crimes. And their mug shots are as present today on these websites as people that are guilty of very serious crimes.
RAZ: And presumably, this affects their job prospects and other things like that.
CIOLEK: Invariably, it's not a very flattering picture. And generally, the crimes they're accused of are posted right next to their picture with their name. And they find it very difficult finding employment or finding people to rent them space for offices or to give them a place to live.
RAZ: You want to turn this into a class action suit. How big could this get?
CIOLEK: We have identified at least 250,000 people in Ohio who are being exploited by these various websites. I've received emails and other correspondences from all over the country where people are talking about this same problem. So I'm hoping that the template that I've kind of laid out in the Ohio class action will be copied by attorneys all over the country with similar rights to publicity so we can completely eradicate this for the Web.
RAZ: That's Scott Ciolek. He's a lawyer representing a class action lawsuit against websites that publish mug shots online. Scott Ciolek, thank you.
CIOLEK: Oh, thank you, Guy. Transcript provided by NPR, Copyright NPR.