When does social media activity lead to criminal prosecutions? 

Posting to social media sites in the privacy of your own home can have ramifications in your workplace and other aspects of your day to day life. Some types of posts to social media sites can even put you at risk of being charged with a criminal offence!  The Australian Communication and Media Authority provides a useful run-down of cases where Australians have been prosecuted as a result of their activity on social media sites like Facebook.

A young man in South Australia was prosecuted for criminal defamation after he posted hateful comments about a police officer.  The court found his comments acted as inciting acts of violence against a person in authority.  Lots of people “vent” on Facebook and similar sites, but if you post goes so far as to incite hatred or violence, you could wind up in Court.  Threatening people with violence online or offline is a criminal offence.  Never post comments encouraging violence against individuals, groups of people or organisations.  The general rule, if you wouldn’t say it in person; then don’t say it online.

Posting horrifically offensive messages on tribute sites (known as “trolling”) can also lead to criminal charges.  The offence is known as “using a carriage service to menace, harass or cause offence”.  Often trolling is done anonymously, however in the case of R v Hampson [2011] QCA132 the QPS Computer Crime Team were able to identify and locate the person who had posted the offensive messages to a Facebook tribute page.  Hampson received a sentence of 3 years to be released after 12 months at first instance in the District Court.  On appeal, the Court of Appeal described the conduct as “ghoulish, disgusting and depraved” and although the sentence was reduced to 2 years without release after 8 months, imprisonment was the appropriate penalty.

Other cases have involved people positing images of themselves engaged in criminal activity to sites such as YouTube and those images have been used by police to commence charges against the person depicted.  A Victorian woman encouraged her teenage daughter and her friends to physically assault another teenage girl while she filmed the attack.  The footage was posted on MySpace.  She was charged with affray and causing serious injury by aiding and abetting teen attackers.

A man who placed a webcam on the dashboard of his car to capture his ‘burnouts’ on a suburban road was charged with reckless driving after he posted the film on Facebook.  In these cases, posting the material to the internet was sufficient to ground the prosecution case against the poster!



guarantees and the accc

Fully defined statutory guarantees apply to all products and services sold in Australia. While there are nine specific rights regarding goods and three regarding service, the essential rules with relation to guarantees are as follows:

  • Goods must be of acceptable quality (taking account of their price and nature) and fit for the purpose they were designed for.
  • Goods must match any description made of them and any sample shown. If you’re buying a product for a particular purpose, make sure you discuss this explicitly with the salesperson. If in doubt, get it in writing.
  • Spare parts and servicing must be available for products for a “reasonable time” after sale.
  • Services must be carried out with due care and skill, and achieve any result specified… If a plumber promises to fix a leak and the leak continues, the onus is on the plumber to repair it.

There are no explicitly specific periods specified for how long goods must be functional for, since this varies enormously depending on the product category. However, as the ACCC has made clear with recent discussions with phone companies, products provided as part of a contract like mobile phones must remain operable and serviceable for the duration of those contracts.

Businesses can extend these rights — for instance by offering a more specific or longer warranty — but they can’t reduce or ignore them. A business might reasonably argue that the conditions applying to an item sold as a “second” are different, but they can’t opt out altogether. A business cannot display a sign stating “no refunds”. As a consumer, you wouldn’t be able to complain about a stitching flaw in a “seconds” pair of jeans, but if they fell apart the first time you put them on, you’d likely be entitled to ask for a replacement or refund, since they don’t meet their intended purpose at all.

The law also clarifies how problems are to be remedied. If the issue with a product is “major” — defined by the ACCC as “one that is so severe that a reasonable consumer would not have bought the good or service if they had fully understood the problem with it” — then the consumer can choose whether they want a refund, replacement or repair and the vendor can’t object to their choice. For less severe problems, that decision can be made by the supplier.