Websites that publish mug shots and charge for their removal have defeated one lawsuit after the other, claiming First Amendment protection. But that defense to this shady industry may be about to burst. That's because a federal judge, ruling on a lawsuit by several arrestees suing Mughshots.com, just approved a novel class-action. It's one that takes legal advantage of the site's practice of displaying advertising links to paid removal services that the lawsuit claims are owned by Mugshots.com.

US District Judge Sharon Johnson Coleman of Chicago didn't go so far as to say this vile practice amounted to extortion, as alleged. Instead, she ruled (PDF) that this likely amounted to a violation of the arrestees' right of publicity because the site was using the mug shots as actual advertisements for the paid removal service.

As pleaded, the use of the arrest photos and records in conjunction with what appear in the complaint as buttons linking to a removal service are reasonably construed as proposing a commercial transaction. The First Amended Complaint alleges that the profiles on Mugshots.com contained links stating "Unpublish Mugshot," in bold typeface at the top of every page and additional links also in large bold red typeface stating "Click Here for Unpublishing or Call 1-800-810-3965". Visitors that click on the links are taken directly to a checkout page, offering removal services for a fee. On these facts, the arrest photos and records coupled with clear invitation to removal create the appearance that they operate in concert to sell the removal service and generate revenue. Defendants’ assertion that Mugshots.com and the removal service at Unpublisharrest.com are completely separate is belied by the structure of the Mugshots.com site and the corporate structure alleged in the complaint. As described in the complaint, the arrest profiles are designed to coerce plaintiffs to pay for removal.

And here's the kicker:

In other words, the mugshots themselves are advertisements for the removal service, which is the far more lucrative enterprise.

The site's attorney did not immediately respond to Ars' request for comment. But in court documents, the defense claimed it had a constitutional right to maintain its business model. "All such claims are barred, because those records constitute matters of public concern and, as such, their publication cannot be penalized or restrained consistently with the First Amendment absent a state interest of the highest order. No such interest is implicated here," the defense said (PDF).

The plaintiffs in the lawsuit (PDF) claim they have lost jobs or have been unable to gain employment because of the mug shots appearing on the site. One mug shot, according to the lawsuit, was of a Florida man who was falsely arrested for check fraud. But Mugshots.com was never updated to reflect that. Instead, the site demanded that the man pay a $399 fee for the update.

Another plaintiff, according to the lawsuit, claimed he would have to pay $2,000 to have his mug shot removed in addition to $15,000 to have his arrest profile taken down. He didn't pay.

Mugshots.com gets its photos by either scraping publicly available law enforcement websites or via freedom of information requests.

No new hearing date was immediately set.

I published this in-depth look at the online mug shot removal racket for Ars' sister site, Wired, in 2011.