New Florida law penalizes publishers for not removing mugshots on demand

Many Florida convenience stores sell publications that feature nothing but mugshots of up to 700,000 people a year arrested by local law enforcement across the state.

Since few folks are looking their best when being arrested, the snap-shots of the humiliated, frightened, drunkenly defiant, stoned, busted, bruised and bloodied are often a source of great amusement for photobook readers and profit for its publishers.

But no more – or, at least, no more if those whose images are used commercially by publishers and a person demands their mugshots be removed.

A bill adopted by unanimously by both chambers of the Legislature during their 2021 session and signed into law Monday by Gov. Ron DeSantis will penalize publishers $1,000 a day beginning 10 days after receiving a written request from someone to remove their mugshot from a photobook.

Senate Bill 1046, sponsored by Sen. Aaron Bean, R-Fernandina Beach, goes into effect July 1 and builds on a 2017 law that prohibited publishers from demanding money to remove a mug shot.

Florida is one of 14 state to enact legislation prohibiting commercial website operators from posting mugshot photos on a website and charging a removal fee, according to the National Conference of State Legislatures (NCSL), but its new law may be the nation’s first to penalize publishers for failing to remove them when requested.

State Rep. Jason Fischer, R-Sanford, who sponsored SB 1046’s House version, House Bill 755, said publishers used bots to automatically gather and publish mugshots without any concern but profit.

“It can tarnish someone’s impression of the people, even if they’ve been acquitted or they’ve not been charged,” Fischer said on April 8 on the House floor.

Under the new law, “any person or entity that publishes or disseminates information relating to arrest booking photographs for a commercial purpose or pecuniary gain as their primary business model” is subject to a $1,000 a day civil penalty for failing to remove the arrest booking photograph upon written request within 10 days. In addition, the person in the mugshot can sue the publisher.

Bean and Fischer co-sponsored the bill after two years of working with Blake Mathesie, a Florida State University law student whose mugshot from a 2018 arrest remain available on websites even though his charges were dropped.

The mugshot has spurred questions in interviews, the law student told Florida Politics in March.

“The publication of these mugshots not only violates due process, but it hurts the personal and professional prospects of those affected,” Mathesie said. “A mug shot is taken at the lowest point in someone’s life.”

SB 1046’s five-page staff analysis makes a note of gauging impacts on the “mugshotted,” noting 77% of employers Google job applicant’s name during the hiring process. Google has since adjusted algorithms so mugshot companies no longer appear as prominently in search results.

Legal battles over mugshots have spurred Florida lawsuits alleging invasion of privacy based on “false light,” unauthorized appropriation of name or likeness, defamation by slander and unjust enrichment.

“False light” is similar to defamation. It states a non-public person has the right to protection from publicity which puts the person in a “false light.”

In 2008, the Florida Supreme Court refused to recognize false light claims “because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment.”

In 2014, a federal district court upheld a Floridian’s suit alleging publishing a booking photograph without her consent and advertising “unpublishing services” that require payment to remove the photo to be illegal. The court later denied the plaintiff’s motion to file a class-action lawsuit.