Lawsuit goes after 'extortion' mugshot websites

CINCINNATI - Andrew Hersey is ashamed of what he did almost two years ago.

"I was out and I shouldn't have been driving," Hersey said.  "I know I shouldn't have been driving but I was and I made that mistake."

It was April 2011, and Hersey was busted for drunk driving. He pleaded no contest, and after court costs and lawyer fees, he estimates his mistake cost him more than $3,000. The 27-year-old from Norwood is trying to move on with his life, with a new job and his 4-month-old daughter.

But he said one website is hanging his criminal history over his head.

"It's just really frustrating. Every once in a while I'll go back on[line] and I'll say, 'Is it gone yet? Maybe it's gone. Maybe they removed it.' But it's still there."

The site Bustedmugshots.com says it's an "innovative crime information network" that "empowers citizens to be aware, informed and proactive." The website claims to allow users to search millions of criminal records from 34 states.

Hersey is one of the millions of "criminals" stored in the database. Bustedmugshots features Hersey's mug shot with the option to purchase police reports or court documents from his case for $119.95. 

What angers Hersey, and others, is the "removal" option on the site. For almost $100, the website says Hersey's mug will disappear in 20 days. For more money, Hersey can pay for a "rush removal" to have his mug shot immediately taken down.

"How can they do this? How can they make me pay to have my picture removed? I understand it's a public record and it's available to anybody, but they shouldn't be able to make me pay to have it removed from a private website," Hersey said.

Toledo-based attorney Scott Ciolek doesn't think so either, and that's why he's filed a class action lawsuit against several sites, including Justmugshots.com, Mugshotsonline.com and Findmugshots.com.

"[These sites] think they're protected by freedom of speech rules and public records laws, but using the image and the name to sell the service of taking the image and the name down, is a violation of the publicity rights," Ciolek said.

Ohio state law sets guidelines for using someone's photograph or image without their consent. The laws are known as ‘publicity rights,' and are the basis of Ciolek's lawsuit. In Ohio, the right of publicity means someone must first obtain written consent to use someone else's likeness for commercial purposes.

However, news reports and political campaigns are exempt from this statute.

A spokesman from Justmugshots.com told 9 On Your Side in a statement, "We definitely feel like we provide a substantial news value to the public and therefore provide an important public service…by reporting on the facts of arrests and bookings…We believe that the public has a strong interest in, and a right to, this type of information."

The statement made no mention of the "removal" option that could cost people hundreds of dollars.

"There is a misunderstanding I think, within these websites, that because something is part of the public record, that it therefore belongs to the public domain," Ciolek said. "It's not true with patents. If you have a patent, for example, your invention and all the details describing it are part of the public record. They're on record at the patent office. But you can't make, sell or use those permissions without the permission of the patent holder."

Ciolek took on the case last year after he said Phillip Kaplan's mug shot appeared on one of the sites. In 2011, Ciolek said Kaplan was arrested for failing to disperse from a party. Ciolek says Kaplan's charges were dropped and his record was sealed.  Debra Lashaway's charge for theft was also dropped, but Ciolek says both mug shots later appeared online.

"They are essentially saying, 'We've got your mug shot online. We know it's going to interfere with your life and we're going to charge you to take it down, and if you don't pay us we're going to continue to embarrass your personal and business reputation,'" Ciolek said.

Some of the sites offer to take down mug shots for free if a person can prove the charges were dropped or they're found not guilty.  Still, Ciolek said it's a process to have your picture removed and the decision ultimately is left up to the website.

Ciolek says there is no precedence for a case like this against Internet websites, but it could take many years to play out if the cases are appealed.

"This approach to use publicity rights to effectively dismantle these extortion-based websites will be the first time this is done. It will set a precedent that can be used throughout all of Ohio. A lot of other states have adopted similar publicity rights laws and the hope is that they would adopt this. These extortion websites are expanding into other areas other than mug shots," Ciolek said.

Hersey just wants to be able to forget about his experience.

"I feel like I've already paid my dues," Hersey said.  "I feel like it's just an evil way to make money."

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