Maintaining an online reputation is integral to career growth and securing opportunities in our modern society. Our public posts and online behavior on websites like Facebook and Reddit are all fair game for potential employers, college admissions officers, and any other interested parties wanting to gauge our personal character. While we expect our public posts and social media profiles to appear when someone searches for our name on Google, a haunting, damaging memento from our (often pre-Facebook) pasts has started appearing on the first page of Google search results with more and more frequency: our mug shots.
Encouraged by the success of sites like Mugshots.com and TheSmokingGun.com, more than 60 new mug shot publishing websites have been created since March 2013. Under the various state open records laws around the country, these websites can legally download mug shots from law enforcement websites and post the images of the accused. Although mug shots are not proof of a conviction (and many people whose images are now on display were never found guilty), most parties won’t take the time to inquire or research as to whether you were actually charged, and make a decision as to your character based on the mug shot and charges alone. A large number of sites have begun monetizing on the humiliation and fear of reputational harm that comes with having your mug shot at risk of being found by potential employers, charging the accused a fee anywhere from $75 at the low end to hundreds of dollars to take a single picture down (regardless of whether or not you were convicted of the crime under which you were arrested).
While the existence of a mug shot alone is unsettling for many Americans, what’s most troubling for the millions of people now pictured on these sites is the financial infeasibility of removing all evidence of the mug shots online. Even if the fee for one site is relatively low, there are often another ten or more sites with a copy of your mug shot, each available to the world to see. As mug shots are public records per the open records laws of most states, they are available to whoever requests them and provide an unlimited, non-stop resource for mug shot websites. For example, if you find your mug shot on sites A, B, and C and pay the required fee to remove your image on Site A, your mug shot is still available on Site B and Site C because they are owned and operated independently of Site A. You would then need to pay Sites B and C as well to make them remove it. However, even if you pay all three sites, there is nothing stopping a new site from acquiring your mug shot from a law enforcement agency under the respective state open records law. Before you know it, new sites D, E, and F have a copy of your mug shot and the cycle begins again. Suddenly, this removal fee process turns each of us into a modern day Sisyphus, emptying our wallets in triumph only to discover the mug shot and its coinciding removal fee have appeared on another corner of the Internet.
This controversy has led the Colorado state legislature to enact legislation to regulate the mug shot publishing industry. Colorado House Bill 1047 amended Colorado Revised Statutes 24-72-305.5. The new law makes it unlawful for anyone to obtain a mug shot when they know the photograph is going to be placed in a publication or posted to a website and removal of the image requires paying a fee or other exchange for pecuniary gain. The law also makes it unlawful to use a mug shot for the direct solicitation of business for pecuniary gain.
After September 1, 2014, anyone making a request for a mug shot under the Colorado Open Records Act must sign a statement at the time the request is made verifying that the mug shot will neither be placed on a website or in a publication that requires paying a fee or other exchange for pecuniary gain to remove the image nor used for the direct solicitation of a business for pecuniary gain. Website operators can be charged with an unclassified misdemeanor and may be required to pay a fine up to $1,000. However, websites that do not charge a fee are under no obligation to remove mug shots published on their website under the new law. These websites may continue to publish mug shots lawfully.
If you’re a resident of Colorado and find your mug shot posted online, the first thing to do is check the removal policy on the website for any required removal fees or charges. Although the Colorado’s statute is criminal in nature, a private civil attorney can play a valuable role with helping remove your mug shot and remedy any harms you may have experienced from the unlawful use of your image. Colorado attorneys can explain the Colorado law for many of these out-of-state websites that are unfamiliar with Colorado’s new law, and help them understand the criminal charges, and fines they face if they do not cooperate with your demands. While the new Colorado law does not create a private right of action, sending a letter does serve to put a website operator on notice of a violation of law. If the website operator fails to comply with your demands and remedy their behavior, they can then be sued in a private civil suit for violating their duty of care not to harm you under Colorado Revised Statutes 24-72-305.5 and be held liable in a Colorado court for the resulting damages, including lost income from a potential employer.
By Cassandra Kirsch, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.