The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1046
INTRODUCER: Commerce and Tourism Committee, Senator Bean, and others
SUBJECT: Arrest Booking Photographs
DATE: March 23, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stokes Jones CJ Favorable
2. Harmsen McKay CM Fav/CS
3. Stokes Phelps RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1046 expands s. 901.43, F.S., to subject 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 to a civil penalty for failing to remove the arrest
booking photograph upon written request.
Section 901.43, F.S., prohibits any person or entity engaged in the business of publishing or
otherwise disseminating arrest booking photographs from soliciting or accepting a fee to remove
the photographs. Additionally, this section requires persons or entities who accept a fee for the
removal of such photographs to remove the photographs within ten days of a written request or
be subject to a civil penalty.
This bill may have an indeterminate fiscal impact on the courts due to the expansion of what
entities are subject to civil penalties. See Section V. Fiscal Impact Statement.
This bill is effective October 1, 2021.
BILL: CS/SB 1046 Page 2
II. Present Situation:
Dissemination of Arrest Booking Photographs
Section 901.43, F.S., provides that any person or entity engaged in the business of publicly
publishing arrest booking photographs may not solicit or accept a fee or other form of payment
to remove the photographs.1
A person whose arrest booking photograph is published, or his or her legal representative, may
request that a registered agent of the person or entity who published the photograph remove the
photograph. The request must:
Be made in writing.
Be sent by registered mail.
Include sufficient proof of identification of the person whose arrest booking photograph was
published.
Include specific information identifying the arrest booking photograph that the request seeks
to remove.2
The person or entity that published the arrest booking photograph must remove the photograph
within 10 days of receipt of the written request for removal.3 If the photograph is not removed
within 10 calendar days, the person seeking removal may bring a civil action to enjoin the
continued publication of the photograph. Additionally, the court may impose a civil penalty of
$1,000 per day for noncompliance and must award reasonable attorney fees and court costs.
Money recovered for civil penalties must be deposited into the General Revenue Fund.4
Refusal to remove an arrest booking photograph after written request has been made constitutes
an unfair or deceptive trade practice in accordance with part II of ch. 501, F.S.5
Section 901.43, F.S., only applies to a person or entity that solicits or accepts payments to
remove arrest booking photographs.6
Public Disclosure of Criminal Record Information
All “materials made or received by an agency in connection with official business which are
used to perpetuate, communicate, or formalize knowledge” are public records and open for
public inspection, unless a specific exemption applies.7
1
Section 901.43(1), F.S.
2
Section 901.43(2), F.S.
3
Id.
4
Section 901.43(3), F.S.
5
Section 901.43(4), F.S.
6
Section 901.43(5), F.S.
7
Office of the Attorney General (Florida), Public Records: A Guide for Law Enforcement Agencies (2019 Edition), at p. 1.
and endnote 1 (citing Shevin v. Byron, Harless, Schaffer, Reid and Assocs., Inc., 379 So. 2d 633, 640 (Fla. 1980)) and
endnote 2 (citing Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979)), available at
http://myfloridalegal.com/webfiles.nsf/WF/MNOS-BAMQDX/$file/2019+Law+Enforcement+Guide+v6.pdf (last visited on
Mar. 16, 2021).
BILL: CS/SB 1046 Page 3
Criminal record information may be obtained and published by non-governmental publishers.
This information includes booking photographs, arrest reports, charging documents, sentencing
orders, and criminal history information.8 Like all other records prepared by Florida government
agencies, arrest and crime reports are generally considered to be subject to public disclosure
unless specifically exempted.9 Statutory exemptions for active criminal investigative and
intelligence information, confessions, juvenile offender records, and certain victim information
may apply to crime reports and other law enforcement records.10
Arrest Record Information
Public record information pertaining to a person’s arrest for the alleged commission of a crime
includes the arrest report and booking photograph (“mugshot”). With few exceptions, arrest
record information (including booking photographs) must be disclosed pursuant to a public
records request.11 However, the arrest record information of juveniles charged with
misdemeanors is confidential and exempt,12 and a public records custodian may choose to not
electronically publish the arrest or booking photograph of a child that is not confidential and
exempt.13
Arrest record information may be requested by many persons and entities, including members of
the public, traditional news companies, companies that provide criminal history or criminal
record information for a service or subscriber fee (e.g., so that a private employer may determine
if a job applicant has a criminal history), and companies that are often referred to as “mugshot”
companies.
Mugshot companies operate commercial websites that repost booking photographs. The
companies often make a profit by charging a fee to remove the image. Photos posted on one site
may also be reposted to other sites, causing continuing harm to the reputation of the individual.14
Florida law does not specifically prohibit mugshot companies from posting booking
photographs, but does prohibit charging a removal fee.15
Laws and Legislation of Other States
Some states have passed laws addressing the issue of publishing booking photographs for
commercial gain. Fourteen states, including Florida, have enacted legislation designed to prohibit
8
The Florida Department of Law Enforcement is the central repository of criminal history information for the State of
Florida. For a fee, a search of Florida criminal history information regarding a person may be performed. Excluded from the
search is sealed or expunged information. Florida Department of Law Enforcement, Criminal History Information, Search
Florida’s Criminal Histories, https://web.fdle.state.fl.us/search/app/default (last visited Mar. 16, 2021).
9
Office of the Attorney General (Florida), Public Records: A Guide for Law Enforcement Agencies (2019 Edition), at p. 6,
available at http://myfloridalegal.com/webfiles.nsf/WF/MNOS-BAMQDX/$file/2019+Law+Enforcement+Guide+v6.pdf
(last visited Mar. 16, 2021).
10
Id. at 6-7.
11
Op. Att’y Gen. 94-90 (October 25, 1994) (footnotes omitted), available at
http://www.myfloridalegal.com/ago.nsf/Opinions/83A1D5004064269D852562210063168E (last visited Mar. 16, 2021).
12
Sections 943.053(3), and 985.04(2), F.S.
13
Section 985.04(2)(a)(2), F.S.
14
National Conference of State Legislatures, Mug Shots and Booking Photo Websites, Overview, May 4, 2020,
http://www.ncsl.org/research/telecommunications-and-information-technology/mug-shots-and-booking-photo-websites.aspx
(last visited Mar. 16, 2021).
15
Section 901.43, F.S.
BILL: CS/SB 1046 Page 4
commercial website operators from posting mugshot photos on a website and charging a removal
fee.16 Additionally, some states have limited public access to booking photographs. For example,
law enforcement in California have the discretion to furnish copies of booking photographs in
response to a public request. However, once a copy is furnished to one member of the general
public, it must be made available to all who make a request.17
An American Bar Association article suggests that there is no legal solution to this problem, and
instead, the solution will develop through private sector activity.18 For example, Google has
adjusted its algorithms so that the mugshot companies will not appear as prominently in the
search results. In addition, some credit card companies such as MasterCard, American Express,
and Discover are cutting ties with these types of websites.19
Case Law
Persons whose booking photographs are posted by commercial entities have sought relief based
on various causes of action. These include claims for an invasion of privacy based on false light,
invasion of privacy based on unauthorized appropriation of name or likeness, defamation by
slander, and unjust enrichment.20
In 2008, the Florida Supreme Court indicated that Florida does not recognize tort claims based
on false light, “because we conclude that false light is largely duplicative of existing torts, but
without the attendant protections of the First Amendment.”21 The Court specifically noted that
the key elements of a false claim are nearly identical to the elements required in a defamation
case.22 Florida does recognize defamation claims.23
Right of Publicity
Section 540.08(1), F.S., prohibits a person from publishing, printing, displaying, or otherwise
publicly using for purposes of trade or for any commercial or advertising purpose the name,
portrait, photograph, or other likeness of any natural person without the person’s express written
or oral consent to such use. There are exceptions for:
16
National Conference of State Legislatures, supra note 14. The thirteen states are California, Colorado, Georgia, Illinois,
Kentucky, Maryland, Missouri, Oregon, South Carolina, Texas, Utah, Virginia, and Wyoming.
17
Office of the Attorney General, State of California, Opinion No. 03-205 (July 14, 2003), available at
https://oag.ca.gov/system/files/opinions/pdfs/03-205.pdf (last visited Mar. 16, 2021).
18
Stephanie Francis Ward, Hoist Your Mug: Websites Will Post Your Name and Photo; Others Will Charge You to Remove
Them, ABA JOURNAL, August 1, 2012, available at
http://www.abajournal.com/magazine/article/hoist_your_mug_websites_will_post_your_name_and_photo_others_will_charg
e_yo (last visited Mar. 16, 2021).
19
National Conference of State Legislatures, Mug Shots and Booking Photo Websites, Overview, May 4, 2020,
http://www.ncsl.org/research/telecommunications-and-information-technology/mug-shots-and-booking-photo-websites.aspx
(last visited Mar. 16, 2021).
20
A claim of false light is a type of a claim of invasion of privacy based in tort. For example, to prevail in a false light claim
in Pennsylvania, a defendant must establish that a highly offensive false statement was publicized by a defendant with
knowledge or in reckless disregard of its falsity. Santillo v. Reedel, 430 Pa. Super. 290, 295-296 (Pa. Super. Ct.1993).
21
Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1100 (Fla. 2008).
22
Id. at 1105-1106.
23
Id. at 1111-1112. See ch. 770, F.S.
BILL: CS/SB 1046 Page 5
Publication, printing, display, or use of the name or likeness of any person in any newspaper,
magazine, book, news broadcast or telecast, or other news medium or publication as part of
any bona fide news report or presentation having a current and legitimate public interest and
where such name or likeness is not used for advertising purposes;
The use of such name, portrait, photograph, or other likeness in connection with the resale or
other distribution of literary, musical, or artistic productions or other articles of merchandise
or property where such person has consented to the use on or in connection with the initial
sale or distribution; and
Any photograph of a person solely as a member of the public and where such person is not
named or otherwise identified in or in connection with the use of such photograph.24
When necessary consent is not obtained, the person whose name, portrait, photograph, or other
likeness is used may bring an action to enjoin the unauthorized publication, printing, display or
other public use, and to recover damages for any loss or injury sustained, including an amount
which would have been a reasonable royalty, and punitive or exemplary damages.25
In 2014, a Florida federal district court denied the defendant’s motion to dismiss a cause of
action alleging a violation of s. 540.08, F.S., for publishing the plaintiff’s booking photograph
without her consent and advertising “unpublishing services” that required the payment of a fee to
remove the photograph.26 In a later proceeding, the court denied the plaintiff’s Motion to Certify
Class (to allow the case to proceed as a class action) without prejudice.27 The class action was
not re-filed, nor was the case resolved by trial on the merits. The resolution of the case and
whether the plaintiff would have succeeded on the merits of her claim is unknown.
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
History and Purpose of FDUTPA
Section 901.43(4), F.S., subjects a person or entity that refuses to remove an arrest booking
photograph after a specific request has been made to remove it to prosecution under the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA).
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
commerce.28 The FDUTPA is based on federal law.29 The State Attorney or the Department of
Legal Affairs may bring actions when it is in the public interest on behalf of consumers or
governmental entities.30 The Office of the State Attorney may enforce violations of the FDUTPA
24
Section 540.08(4), F.S.
25
Section 540.08(2), F.S.
26
Bilotta v. Citizen Info. Assocs., LLC, 2014 U.S. Dist. LEXIS 3229 (M.D. Fla. Jan. 10, 2014).
27
Bilotta v. Citizen Info. Assocs., LLC, 2014 U.S. Dist. LEXIS 68495 (M.D. Fla. May 19, 2014).
28
Chapter 73-124, Laws of Fla., and s. 501.202, F.S.
29
D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. Miami L.
Rev. 1083, Summer 2011.
30
Section 501.207, F.S. David J. Federbush, FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic
Coverage; State Actions for Consumer Restitution, 76 FLA. B.J. 52, December 2002, available at
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99aa165b7d8ac8a485256c8300
791ec1!OpenDocument&Highlight=0,business,Division* (last visited Mar. 16, 2021).
BILL: CS/SB 1046 Page 6
if the violations take place in its jurisdiction. The Department of Legal Affairs has enforcement
authority if the violation is multi-jurisdictional, the state attorney defers in writing, or the state
attorney fails to act within 90 days after a written complaint is filed.31 Consumers may also file
suit through private actions.32
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments;
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation.33
Remedies for private parties are limited to:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation; and
Actual damages, attorney fees and court costs, where a person has suffered a loss due to a
FDUTPA violation.34
Arrest Records and Employment
An online mugshot photo can complicate the hiring process for some.35 According to one source,
77 percent of employers google their job applicants.36 The Equal Employment Opportunity
Commission (EEOC) has provided guidance that an arrest, in and of itself, is not a job-related