by Mark Wilson

The California Court of Appeals held that charging a fee to remove mugshot photographs from a company's website is not protected free speech activity. Accordingly, dismissal of claims against the company were not warranted under California's anti-strategic lawsuit against public participation (anti-SLAPP) law.

A California company posts public record booking photographs and names of individuals who have been arrested on its two websites: www.justmugshots.com and mugshots.mobi. The photographs are posted within hours of an individual's arrest and without regard to guilt. The company also inflates search engine results to ensure that its Web sites are a top result in a search for the individual's name.

The company charges a $199 fee to remove mugshots from its website. Yet, even after an individual has paid to have a photograph removed, the company posts additional photos of the same individual to extort additional payments from them. Revenue is also generated by using the individual's name in paid advertising.

Zim Rogers filed a class action lawsuit against the company in state court, alleging misappropriation of likeness and unfair and unlawful business practices. Defendant moved to strike both claims under California's anti-SLAPP law (Code Civ. Proc. § 425.16). The trial court denied the motion, holding that Defendant was not engaged in protected activity, and even if it was, Plaintiff demonstrated a probability of prevailing.

The California Court of Appeals affirmed, agreeing that Defendant was not engaged in protected activity. Although the court agreed that publishing the booking photographs was protected conduct, it acknowledged that "nowhere in his complaint does plaintiff challenge defendant's arguably protected conduct of posting publicly available booking photographs on its Web sites." Rather, "plaintiff's claims are based entirely on defendant's separate acts of charging a fee to remove booking photographs once they are posted and incorporating pictured individuals' names into advertising on its Web sites," the court explained.

"Defendant does not argue that the acts of charging the removal fee and using pictured individuals' names in advertising are protected speech activities," the court found. Therefore, "the anti-SLAPP statute does not apply."

California Civil Code section 1798.91.1(b) now makes it unlawful to extort fees from individuals to refrain from publishing their booking photos. That statute was not at issue, however, because the challenged conduct occurred before the law's January 1, 2015 enactment.

See: Rogers v. Justmugshots, 2015 Cal. App. Unpub. LEXIS 7177 (Cal. App. 2d Dist. Oct. 7, 2015).

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