In the morning, I like to pour myself a hot steaming mug of coffee. The coffee helps me clear my mind and start the day. But what if, groggy and disoriented, I reach into the cupboard and blindly choose a mug? And, not only is it not my 100-reasons-why-lawyer's-are-essential mug, but it is a mug with a mug-shot on it! What? How is this possible?
Well, it is possible. Recently, the Art and Artifice blog, on art and law, commented on old mugshots being placed on coffee mugs for commercial sale. There is an excellent discussion on the blog concerning the legalities of this. Privacy and reputation is an issue as well as the philosophical question of when have criminals paid their debt to society? Is the legal punishment enough or do we, as a society, require something more than that? And, do we have a right to require more?
How would these mugs go over in Canada? Certainly, a fundamental Charter value is individual dignity and self-worth. Privacy is one of the most personal and therefore strongly held Charter rights we enjoy. Usually privacy rights give away to security and protection of society - just leaf through the Criminal Code and the Anti-Terrorism Act for examples of that. Reputation is also a right protected through the Charter. In the SCC case of Hill, Justice Cory said this about reputation:
Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.
So it appears these mugs could potentially damage one's reputation as well as possibly become an unsanctioned form of punishment.
Does the source of these photos matter? In Canada, this too may be an issue. On a reading of s. 2(3) of the Identification of Criminals Act (R.S.C., 1985, c. I-1), identification/arrest photographs can only be used for the purpose of
affording information to officers and others engaged in the execution or administration of the law.
So it appears the photos can be used for a photographic identification line-up but can’t be used for commercial purposes. If so used, is there an illegal search and seizure argument? Is there a civil suit for the harm caused by an illegal search and seizure and the resultant damage to a reputation?
I will leave that to you to ponder.