Social_Media_Law - National Association of Community Legal

Report
The Internet,
Social Media
& the Law
Young People & The Law
17 JULY 2013
The information provided in this session is for information
purposes only.
It must not be relied on as legal advice.
You should seek legal advice about your own particular
circumstances.
WHAT IS THE HUNTER COMMUNITY LEGAL CENTRE?
The Hunter Community Legal Centre (HCLC) is an independent, not for profit,
community legal centre funded by the State and Federal Governments.
HCLC provides free legal advice and assistance to disadvantaged people
who live, work or study in the Newcastle, Lake Macquarie, Port Stephens,
Great Lakes and Hunter Valley regions of New South Wales.
You can call HCLC for free legal advice on 4040 9120 at the following times:
Monday: 10.00 am – 12.00 noon
Wednesday: 2.00 pm – 4.00 pm
Friday: 10.00 am – 12 noon
Part I:
• Sexting
• Cyberbulling
• Self-Incrimination
• Defamation
Part II:
• Interactions with Police (Arrests, Interviews)
• Young Offenders Act
• Youth Justice Conferencing
SEXTING: WHAT IS IT?
When someone takes photos or
videos of themselves or others,
naked, partly naked or posing in a
sexual way then shares those
images with others via mobile
phones or the internet.
AND
When someone receives such
images, forwards them on to
others or posts them online.
SEXTING: HOW COMMON IS IT?
According to a 2011 survey, 15% of 11–16year-old internet users in Australia have
received ‘sexts’ and 4% have sent them.
A National Youth Law Centre survey found that
of the 96 young people surveyed:
• 10.8% said they had sent an image of
themselves by phone
• 21.9% said they had received an image
• 8.1% said that they had shared the image
with others
SEXTING & THE LAW
The laws that affect sexting were drafted before the
advent of smart phones and social networking.
The aim of the laws was to protect children from abuse
and prevent the creation and distribution of child
pornography.
Young people who ‘sext’ might face child pornography
charges, and have their names added to the sex
offenders register.
SEXTING: CHILD PORNOGRAPHY
The NSW Crimes Act defines child pornography as any material that depicts
or describes… in an offensive way:
A person who is, or appears to be a child, engaged in a sexual
pose or sexual activity
The private parts of a person who is or appears to be a child
In other words, the law labels any sexual photos of young people as a form of
child pornography.
This means that young people who engage in sexting can face severe
criminal penalties for procuring, creating and distributing child pornography.
SEXTING: CRIMINAL PENALTIES
Offence
Max Penalty
Using a child for the production of child abuse
material (NSW)
Up to 14 years imprisonment
(sex offender registry)
Production, dissemination or possession of child
abuse material (NSW)
Up to 10 years imprisonment
Using the internet or a phone to access, solicit,
distribute or promote child pornography (Cth)
Up to 15 years imprisonment
(sex offender registry)
Posting an indecent photo (NSW)
Up to 1 year imprisonment
Causing someone under 16 t do an act of
indecency, knowing it will be filmed
Up to 10 years imprisonment
Using a carriage service to menace, harass or
cause offence (Cth)
Up to 3 years imprisonment
SEXTING SCENARIO: ADAM AND BRIE
Adam and Brie are both 15 years old. They had been going out for about a
month.
• Adam asked Brie to send him a photo of her breasts.
• Brie takes a photo and sends it to Adam’s phone.
• Later, Adam and Brie break up and Adam forwards the pictures on
to his friend Chris
• Chris forwards the photo on to another friend, and it is spread
throughout the school.
• Another student, Fiona, creates a Facebook group, where she posts
the photo.
• Brie tells her parents, who inform the school and the police.
* Scenario taken from NCYLCNew Voices/New Laws Prezi
SEXTING SCENARIO: IDENTIFYING CRIMES
It is a crime to:
• Ask for the photo (like Adam did)
• Take the photo (like Brie did)
• Have the photo (Adam, Brie, and most of the
school now have possession of the photo)
• Distribute the photo by text, facebook etc (like
Adam, Chris and Fiona did)
SEXTING: WHAT ABOUT CONSENT?
• Young people can legally consent to sex at the age of
16.
• However, they cannot consent to sexting until the age of
18.
It doesn’t matter that Brie was happy to send the photo.
Even with her consent, Adam and Brie may both have
committed a number of crimes
CONSEQUENCES OF SEXTING:
SEX OFFENDERS REGISTER
It is possible that a young person could be placed on the sex offender register
as a result of their ‘sexting’.
• The Australian National Child Offender Register is a police
database of people who have been convicted of sexually abusing
children
• People on the register have to provide their name address and
other information to the police, and inform the police whenever they
move house or travel
• People on the register cannot be employed in positions that require
a “Working with Children” check (this includes volunteer positions)
SEXTING: ADVICE FOR YOUNG PEOPLE
• Don’t do it! Never share naked photos online
or via text. Don’t pass on photos sent to you.
• Sexting can result in serious criminal
penalties and affect a young person’s job
opportunities for the rest of their life.
• Even if you send something to someone you
trust, there is a chance that it might become
more public.
• Delete any photos you’re unsure about from
your phone. Its hard to delete them once
they’ve gone online.
• Talk to a trusted adult.
CYBERBULLYING: WHAT IS IT?
Cyber-bullying is any kind of bullying or harassment done
through the use of techonology.
It is often very public, difficult to take down and can
severely impact a young person’s wellbeing.
Examples of Cyber Bullying include:
• Sharing embarrassing photos of someone online
• Making harassing calls, or sending harassing texts or
emails
• Posting harmful statements about people online
• Accessing some else’s Facebook or Twitter accounts
and posting humiliating material
• Setting up a fake online profile pretending to be
someone
CYBERBULLYING: IS IT A CRIME?
There is no specific crime of ‘cyberbullying’ in NSW. However, people can still be
prosecuted, fined and even gaoled, for cyberbullying behaviour.
Often online behaviour has to be dealt with under older criminal offences that were
developed before the rise of the internet and social media.
If cyberbullying is serious enough it may fall one of
the following categories of criminal offences:
• Assault
• Assault at school
• Stalking & Intimidation
• Commonwealth Criminal Code Offences
CYBERBULLYING: ASSAULT
Assault is comprised of three main elements:
Offender
threatens to
use force
against victim
This threat causes
the victim to fear
imminent violence
This fear is
reasonable
Each of these elements might be present in a cyber bullying situation.
Cyber Bullying Example:
A young person has a reasonable fear of imminent violence, after receiving a
number of SMS messages which say that a local gang is coming around to
their house to bash young person up.
CYBERBULLYING: ASSAULT AT SCHOOL
The NSW Crimes Act has a specific offence for assaulting, stalking harassing or
intimidating staff or students at school.
• This applies to face-to-face bullying and cyber-bullying that happens on
school premises.
• It does NOT apply unless both parties are on the school premises.
Cyber Bullying Example:
One student repeatedly sends harassing
messages to another student via email
and social media while they are both in
the school’s computer lab.
CYBERBULLYING: STALKING & INTIMIDATION
Each state and territory have laws which prohibit stalking and other intimidating
behaviour. Examples of criminal offences in NSW include:
Stalking or Intimidation with
intent to cause fear of
physical harm
Up to 5 years imprisonment
and up to $5,500
Intimidation or annoyance by
violence or otherwise
Up to 2 years imprisonment
and up to $5,500
Cyber Bullying Example:
Someone repeatedly drives past a young person’s home and school taking
photos of both buildings on their mobile phone. They then post the photos on
the young person’s social media profiles with intimidating messages.
CYBERBULLYING:
COMMONWEALTH CRIMINAL CODE
The commonwealth criminal code also has a number of offences which could
apply to cyber bullying situations. These include:
Using a carriage service to menace, harrass
or cause offence
Up to 3 years imprisonment
Using a carriage service to make a threat to
kill
Up to 10 years imprisonment
Using a carriage service to make a threat to
cause serious harm
Up to 7 years imprisonment
CYBERBULLYING: CIVIL LAW
Victims of cyberbullying could also seek compensation for
the harm that they suffer as a result of the bullying.
• Victims could sue perpetrators for assault, invasion
of privacy or defamation.
• They could also sue a third party for negligence.
• There is a lower standard of proof required in civil
cases
• Even young people can be sued (so long as they
have the capacity to understand that what they have
done is wrong.
However…
• if the cyber bullying is a young person themselves, they
may not have enough money to pay for compensation.
CYBERBULLYING: ADVICE FOR YOUNG PEOPLE
Talk to a trusted adult about
the bullying (a family member,
a school teacher, a social
worker, or the police)
Change privacy settings on
social media sites and block
the bully from accessing your
information
Work to save evidence of cyber bulling
behaviour
• This can be done by using a print
screen function on a computer, or
keeping a diary where incidents are
recorded
• Always keep you log-in details
private
• Never “add” someone you don’t
know
CYBERBULLYING: USEFUL RESOURCES
Organisation
Website
Other Info
Kids Helpline
www.kidshelp.com.au
1800 55 1800
Australian Mobile
Telecommunications
Associations
www.str8tlk.amta.org.au
@AustMobile Tips
(Twitter)
02 6239 6555
CyberSmart
Australian
Communications & Media
Authority
www.cybersmart.gov.au
Has targeted
information for
different age groups
and parents
“Tagged” – Short Film
Short film for high school students on sexting,
filmed fights, cyberbullying and the law.
Law Stuff/ Youth Hotline
www.lawstuff.org.au
1800 101810
SELF-INCRIMINATION ON SOCIAL MEDIA
London Riots
Schoolyard Fights
Graffiti Tags
Self-incrimination is when a person says or does something that links them to an
illegal activity or crime.
Information posted online can be used by police as evidence of offline crimes.
This is the case even if young people have posted the information under a
username, and even if they were not aware that the activity was criminal.
ACCESSING ONLINE INFORMATION
Young people often do not realise that police and other authorities
can access their social media pages and monitor online activity.
• Most social networking sites have procedures to grant access to
information to police, even if the user’s profile is set to private.
Under NSW law, police can apply for “covert” search warrants
which allow them to access a young person’s Facebook account
for example, without the young person being aware that they had
done so.
• Most schools, universities, employers and even wireless hotspots have
some kind of “acceptable use” policies which allow them to monitor
online activity on their computers.
POLICE ACCESS TO DEVICES
Generally speaking, police cannot take a young persons’ phone, computer or
other device unless they have a search warrant or the young person consents
to handing it over.
If there is no warrant, and no consent, police can
only take a device if:
• The young person has already been arrested
Or if the police have reason to believe that:
• The device is stolen
• The device was used to commit an offence
• Taking the device will help prevent or control some
kind of public disorder
DEFAMATION: WHAT IS IT?
Defamation is where a person intentionally states or spreads information
about another person to cause others to think less of that person.
• Defamation is illegal, whether it happens online or offline.
• Defaming someone could result in civil fines, or a court order to pay
compensation to the victim for damage caused to their reputation.
Nicole is 16 years old and was doing a part-time apprenticeship at a local hair
salon. She liked her job, but when another salon offered her a full-time
position, she took up their offer.
After she started her new job, Nicole found out that her old employer had
been sending emails to her clients and her new employer saying that Nicole
was fired because she had stolen hair products from them.
DEFAMATION: WHAT CAN BE DONE?
If a young person has been
defamed online:
If a young person has
defamed someone online:
• Defamation is illegal and you can
sue someone who has defamed
you online or offline.
• Remove the defamatory material
immediately
• Contact the person defaming you
and ask them to remove the
material and/or post a
retraction.
• Contact the website
administrator and ask them to
remove the defamatory material
• Apologise to the defamed person
and talk about what can be done
to improve the situation.
• Post a retraction, acknowledging
that the statements made were
false.
ACKNOWLEDGEMENTS
•
•
•
•
•
Factsheets available on www.lawstuff.org
Cybercrime available on www.crimecommission.gov.au
NYCLC Prezi ”New Voices/New Laws”
Factsheets available on www.cybersmart.gov.au
Des Butler, Sally Kift & Marilyn Campbell, “Cyber Bullying in
Schools and the Law: Is there an Effective Means of Addressing the
Power Imbalance?” (2009) 16 (1) Murdoch University Electronic
Journal of Law 84

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