Publish Indecent Article on Social Media
In NSW it is an offence to circulate, post on social media, distribute or otherwise publish something that is ‘indecent’.
In a legal context, the word ‘indecent’ means something which a reasonable person would consider to be unacceptable or against community standards. A good example is something depicting conduct of a sexual nature.
A person can be charged with this offence if they post something which is considered to be indecent on social media, for example posting pornography or a video of someone desecrating a memorial or religious site.
The maximum penalty for this offence is 1 year imprisonment or 100 penalty units for a person or 200 penalty units for a corporation.
In NSW, a court can impose any of the following penalties for the offence of Publish Indecent Article.
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Fine
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence of Publish Indecent Article:
The offence of Publish Indecent Article is contained in section 578C (2) of the Crimes Act NSW and states:
A person who publishes an indecent article is guilty of an offence.
Maximum penalty: in the case of an individual-100 penalty units or imprisonment for 12 months (or both), and in the case of a corporation-200 penalty units.
What Actions Might Constitute Publish Indecent Article?
Examples of Publish Indecent Article include:
- Handing out pornographic DVD’s;
- Writing a comment in reply to an article posted on an online newspaper’s facebook page which is graphic, vulgar and sexually explicit in order to insult the journalist;
- Posting a photograph of a decapitation to Instagram;
- Sharing a post which promotes the physical and sexual abuse of children on your twitter page; or
- Re-blogging a photograph of porn on Tumblr.
What the Police Must Prove?
To convict you of Publish Indecent Article the prosecution must prove each of the following matters beyond reasonable doubt:
- That you published an article;
- That article was published ; and
- The article contained content that was indecent.
Possible Defences for Publish Indecent Article:
The common ways to defend this charge are:
- To maintain your innocence if you did not commit the act;
- To argue that you were not the one who published the article;
- To argue that what you did didn’t amount to ‘publishing’;
- To argue that the article was not indecent; or
- To raise necessity or duress as the reason for your conduct.
Which Court Will Hear Your Matter?
The offence is a summary offence and will be finalised in the Local Court.
Types of penalties:
Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.
Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.