Cal Ct of Appeal: Mugshot Lawsuit Not Subject to Anti-SLAPP Law

Cal Ct of Appeal: Mugshot Lawsuit Not Subject to Anti-SLAPP Law

Under California law, any lawsuit that arises “from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” may be subject to a special motion to strike in which the court may dismiss the claim unless the plaintiff can establish a probabilty of success on the claim.

In Rogers v., No. B258863 (Cal. Ct. App. Oct. 7, 2015), the plaintiff filed a class action against the operator of two mugshot websites that charged a $199 fee for the removal of photographs, alleging that:

  • the websites misappropriated their likeness in violation of Civil Code section 3344 because they used their names and photographs “for purposes of selling the service of removing the photographs and names of the Plaintiff and Class, and for the purpose of profiting from advertising directly connected with the name and photograph of the Plaintiff and Class;” and
  • by requiring that parties pay a fee to get their mugshots removed, they were engaging in unfair business practices in that they violated the “spirit” of extortion and profiteering laws codified in Penal Code sections 518 through 527 (extortion) and 186.2 through 186.8 (profiteering), and they were “immoral, unethical, oppressive, unscrupulous and substantially injurious to consumers.”

Last week, the California Court of Appeal (in an unpublished decision) rejected an anti-SLAPP challenge to the lawsuit since it was based not on the publication of the photos but rather on charging a fee for their removal.

As the court explained:

. . . nowhere in his complaint does plaintiff challenge defendant’s arguably protected conduct of posting publicly available booking photographs on its Web sites. Instead, plaintiff’s claims are based entirely on defendant’s separate acts of charging a fee 6 to remove booking photographs once they are posted and incorporating pictured individuals’ names into advertising on its Web sites.

In determining whether the anti-SLAPP statute applies, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cashman).) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) “Thus, when allegations of nonprotected activity are incidental or collateral to a plaintiff’s claim challenging primarily the exercise of the rights of free speech or petition, they may be disregarded in determining whether the cause of action arises from protected activity. Conversely, if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.” (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414.) Defendant does not argue that the acts of charging the removal fee and using pictured individuals’ names in advertising are protected speech activities, so the anti-SLAPP statute does not apply.