Virginia Civil Privacy Claims
Individuals place high value on their privacy, wanting things that they don't voluntarily share to stay private. Virginia laws have increasingly recognized this, and allow for various kinds of civil privacy claims.
- "Revenge Porn:" Creating and/or Disseminating Images of Another in a State of Undress (separate page)
- Unauthorized Use of the Name or Picture of Any Person for Advertising or Trade Purposes
- Charging a Fee for the Removal of Criminal Record Information, including Mugshots
Unauthorized Use of the Name or Picture of Any Person for Advertising or Trade Purposes
In order to use a person's name, portrait, or picture for advertising purposes or for the purposes of trade (i.e. commercial purposes), that person needs to have given written permission for the use first. Find the statute here: Va. Code 8.01-40.
If the person is a minor, their parent or guardian needs to give written permission.
If the person is deceased, then the surviving "consort" (spouse) or next of kin needs to give written permission. (A deceased person's interest in their name or picture ends twenty years after their death, as a lawsuit under the above statute can no longer be filed after that point. See Lavery v. Automation Mgmt. Consultants, 360 S.E.2d 336 (Va. 1987).)
A lawsuit can be filed against the person, firm or corporation using the name or picture, and can ask:
- To prevent and restrain the future use of the name or picture,
- For damages (monetary compensation) for any injuries sustained by their use of the name or picture, and
- The jury to award punitive damages, if the person, firm or corporation knowingly used the name or picture in a way that was forbidden or unlawful.
An exception to this statute is if the name or picture was used to report a newsworthy event or matter of public interest. (See WJLA-TV v. Levin, 564 S.E.2d 383 (Va. 2002).) Other types of claims may come into play over the unauthorized use of a photograph, including copyright infringement.
Charging a Fee for the Removal of Criminal Record Information, including Mugshots
Mugshot websites publicly post mugshots and criminal arrest information on individuals on the Internet. They often make money by charging a fee to have the photo or information removed. Virginia has made it unlawful to publish criminal history information and demand money for it to be taken down.
The statute states that "any person who disseminates, publishes, or maintains or causes to be disseminated, published, or maintained the criminal history record information ... of an individual pertaining to that individual's charge or arrest for a criminal offense and solicits, requests, or accepts money or other thing of value for removing such criminal history record information" is subject to civil liability. Find the statute here: Va. Code 8.01-40.3.
"Criminal history record information" is defined as "records and data collected by criminal justice agencies on adult individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal charges, and any disposition arising therefrom." (Juvenile record information is covered under other laws.) Also, criminal justice intelligence information, criminal justice investigative information, or correctional status information is excluded from this definition.
A person who is the subject of the information can bring a lawsuit and ask for actual damages or $500, whichever is greater, plus reasonable attorney fees and costs.
Other legal issues with mugshots and criminal record information may include defamation claims, especially if the website is displaying wrong information, and expungements of the underlying criminals records if the person was not found guilty.
Exempt from this statute are:
- Online platforms ("an interactive computer service" as defined by 47 U.S.C. 230(f)), and
- Any speech protected by Article I, Section 12 of the Constitution of Virginia.
Have more questions or need a Virginia privacy lawyer?D'Lima Law, LLC can help. Contact us to set up a free consultation to discuss your case.
You can call or text us at 1-800-516-8060.