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Social Media and the Law (Vic)

Social media has become a huge part of everyday life and plays an important role in keeping people connected with family, colleagues and the wider community. In the last few years, there has been an explosion of social media groups catering around community support, special interests and local crime watch groups, in addition to the abundance of businesses who now use various social media platforms as a way of doing business.

With all of the positives that social media carries, there are many risks also associated with its use. There is a plethora of policies and terms and conditions that dictate how people can interact with these services, as well as complicated interactions between social media and various criminal and civil laws. This article deals with two common legal issues that can arise from social media use: the tort of defamation and an offence under the Commonwealth Crimes Act 1958.

Defamation and social media

Defamation is legislated by way of the Defamation Act 2005. Defamation occurs when:

  1. there has been communication or publication of material to a third party;
  2. the material concerns or identifies an individual;
  3. the material contains statements or representations that are untrue and damaging to that person’s reputation.

Section 89 of the Crimes Act

Many people are unaware of the operation of Section 89 of the Crimes Act 1958. There can be very serious consequences for breaching this largely unknown law. Under section 89 of the Crimes Act 1958, it is a criminal offence to publicly advertise a reward for stolen or lost goods, using words or phrases to the effect that ‘no questions will be asked’ or that the return of the lost and/or stolen items will be dealt with confidentially and without any further action being taken.

In other words, it is an offence to post an ad in respect to stolen property agreeing not to report the matter to the authorities or take any steps towards having the offender charged or the matter investigated provided the item is returned.

An offence under section 89 of the Crimes Act 1958, carries a maximum penalty of five penalty units (currently $826.10). A conviction is also likely to be recorded.

Many people, organisations and businesses regularly post comments on social media when items have been stolen and/or lost under specious circumstances. With the increased use of closed-circuit television (CCTV) and the availability of high-quality surveillance photos, it is all too common to see posts on social media that include:

  • A photo of the suspect (which is often clearly identifiable);
  • A comment including:
    • The suspect’s name (if known to the publisher);
    • The items which have allegedly been stolen;
    • An opportunity for the alleged thief to return the items and no further questions will be asked.

There have also been several social media posts in the past in which try to add a bit of humour to these incidents, regularly making comments such as;

  • The alleged thief simply ‘forgot’ to pay for the items, and that their return will be dealt with confidentially and without further question.

It is very important to note that posts such as the above may cause problems for the publisher, especially in situations in which the exact situation and facts have not been proven, and allegations of theft have been made.

Legal consequences of social media posts

A simple post such as the above (which satisfies the elements under section 89 of the Crimes Act 1958), could give rise to the police investigating and laying a criminal charge under this section. Unfortunately, whilst this practice is extremally common, it is also very easy for the prosecuting authority to obtain all the evidence required in order to lay this charge, as all that would be required is a copy of the post. As they say, there is no taking back something that has been posted online.

In keeping with the above, the post may also attract civil proceedings for defamation, which are often complex, time-consuming and very costly to defend, often far exceeding the value of the item/s that were taken in the first instance.

It is very important that people take great care when posting material online both for safety reasons, but also for legal reasons. Whilst it is very uncommon to see a charge laid under section 89 of the Crimes Act, it exists and is therefore enforceable.

Avoiding legal consequences on social media

It is extremally important to ensure that whilst it is not illegal to post a photo of someone online who is suspected of stealing an item/s, there are a few steps which you can take in order to safeguard yourself (however please note that this is not an exhaustive list).

Some of these are:

  1. Only making comments which are based on facts, and not based on opinions or that are intended to be damaging;
  2. Not making any comments which could give rise to a charge under section 89 of the Crimes Act 1958, such as:
  3. That no questions will be asked upon the return of missing items; or
  4. That the matter will be dealt with privately without the intervention of authorities.

If you have had items stolen, it is best to report the matter directly to the authorities and provide them with the necessary information to conduct their investigations. Alternately, you can advertise for the return of the items but avoid using the above phrases which could give rise to a charge under section 89 of the Crimes Act 1958.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Joseph Palamara - Managing Associate - Werribee

This article was written by Joseph Palamara - Managing Associate - Werribee

Joseph holds a Bachelor of Laws from Victoria University and completed his Graduate Diploma of Legal Practice at the College of Law. Joseph also holds a Certificate in Legal Business from the College of Law. Joseph was admitted to practise law in the Supreme Court of Victoria in March 2017 and is also admitted in the High Court of Australia....

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