Committing an offence via Facebook - when can social media posts be criminal?

The recent court case over a young man who made threatening comments on various Facebook pages has resulted in many people being curious about what they can and cannot post on social media. Here is a quick guide to the law to give you an idea on what you can and cannot post on social media. 

Where can I make comments?

The laws on cybercrime and cyberbullying apply to any posts on the Internet, and are described in the law as a carriage service. Social media is often considered particularly harassing as the user is particularly likely to see the post, as are their friends and family. So whether you are making comments on third party site, posting on your own site or on your social media profile these can all potentially be considered as a carriage service. 

What can I say?

There are two main offences, one being 'to menace, harass or cause offence' and the other applying directly to threatening behaviour. These are part of Commonwealth (federal) law so they apply no matter where you live in Australia and can apply to visitors or residents as well as citizens. So if your posts are menacing, harassing, offensive or threatening they can be considered criminal. The longer the duration of the threats and the more offensive and graphic the posts the more serious these will be treated by police and the courts. 

What if someone else was using my account?

If the threats are made from your account you will need to show that you couldn't have made these posts. As this can be tricky, for instance if a friend jumps on your computer at home or uses your phone at the pub, it's a good idea to keep your accounts locked with a secure password. If your account is hacked you should delete the offensive posts as soon as possible. 

What about if I didn't realise my post was offensive?

The degree of offence uses the 'reasonable man' test, which is to say would a reasonable person get that meaning from a post. This means it's fine to post differing opinions but using direct threats, or highly sexual or racist language can be regarded as offensive. Imagine the content you'd be happy with your boss, parents, or loved ones reading when considering if you should post what you are considering saying.

If you are being questioned over your online posts you should contact a criminal lawyer with experience in this field to help you build a defence. 

About Me

Defending my clients at all costs

When I sign on to defend a client, I have to find ways to poke holes in the prosecution's case no matter how air tight it seems. There are always technical and procedural issues to be enforced and work to be done to make sure my client's story is as strong and believable as possible. People who are not familiar with the justice system are often intimidated by the legal processes, so I help them to adjust quickly so that they can manage the stressful situations. This blog is for first time defendants wondering what exactly their lawyers do to manage the defense process behind the scenes.

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