Criminal liability – recent prosecutions for offensive material uploaded and disseminated via social media sites

In one of the first social networking-related criminal convictions in Australia, an aggrieved ex‑boyfriend, who uploaded nude pictures of his former girlfriend onto the social networking site Facebook, has been sentenced to six months in jail.¹ 

The facts

The defendant, Mr Usmanov, posted six pictures of his ex-girlfriend, the complainant, on his Facebook page in October 2011.  The court found the uploaded pictures clearly showed the complainant’s breasts and genitalia.²

Mr Usmanov told his former girlfriend that he had uploaded the pictures of her on his Facebook page.  On receiving that news, the woman immediately went to her former boyfriend’s house, confronted him, and demanded that the photos be taken down.  When he refused to do so, she reported the situation to the police. 

Police interviewed Mr Usmanov.  He told them he had removed the photographs from his Facebook page.  However, the complainant later became aware that Mr Usmanov had re‑posted the photos.  She re‑alerted the police. 

Mr Usmanov was arrested and made a full admission.  He indicated to police that he uploaded the photos because his ex-girlfriend ‘hurt me and it was the only thing [I had] to hurt her.’³

Proceedings were issued against Mr Usmanov under section 578C of the Crimes Act 1900 (NSW).  That section provides that it is an offence for any person to publish an indecent article.  Under the section, an ‘article’ can include a photograph or ‘anything that is looked at’, and ‘publish’ includes distributing, disseminating, circulating or delivering the ‘article’ in question.⁴  This offence carries a maximum penalty of imprisonment for a period of 12 months, together with a fine of up to $11,000. 

Mr Usmanov pleaded guilty and was convicted of the offence.  He was sentenced to six months in jail.⁵  

In her judgment, Deputy Chief Magistrate Mottley noted that the offence was pre-meditated, particularly given that Mr Usmanov had made attempts to contact his ex-girlfriend on the morning he uploaded the photographs to his Facebook page.  In sentencing Mr Usmanov, Mottley DCM said there was a:

‘need to prevent crime by deterring both the offender and the community generally from committing similar crimes.  This is a particularly relevant considering in a matter such as this where new age technology through Facebook with instant access to the world.’⁶

Mottley DCM also remarked that:

‘incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium.  With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred.’

Although the complainant in the case did not file a victim impact statement, the court found the harm to the victim was likely to have been ‘embarrassment, humiliation and anxiety at not only the viewing of the images by persons who are known to her but also the prospect of viewing by those who are not.’⁷

Accordingly, the Magistrate considered the only appropriate penalty in the circumstances was a sentence of imprisonment. 

Federal legislation

In addition to the provisions in various State legislation concerning the publication of offensive online material, the Criminal Code Act 1995 (Cth) (Code) provides numerous offences in respect of the publication and dissemination of material that is intended to threaten, harm, or which may be deemed menacing and offensive-offences which are also indictable offences.  Specifically, section 474.17 of the schedule to the Code provides that it is an offence for a person to use a telecommunications carriage service to send communications that are threatening, harassing or menacing.  A breach of this section of the Code carries a maximum penalty of three years’ imprisonment.

Most recently, charges were laid under the Code against two Australian Defence Force (ADF) cadets involved in the media‑dubbed ADF Skype scandal case.⁸  Similarly, a NSW man was convicted of an offence under the Code and sentenced to three years’ imprisonment in 2011 for posting child pornography on the Facebook tribute pages of two murdered Queensland schoolchildren.⁹

Criminal prosecutions for offences in relation to uploading harassing, threatening or menacing content (in addition to defamatory content) on social media sites have been rare.  However, with the broad reach of the internet, and the ability of users of social media sites to download content posted online and repost offensive material in an endless cycle to the world at large, the potential for damage and harm to be caused to the victims of such cowardly attacks is incalculable.  It is likely that, with increasing use of social media sites, blogs and forums, that criminal prosecutions will become more commonplace as the police and federal authorities take steps to deter future potential offenders from engaging in such online conduct.

As Justice Mottley said in her sentencing remarks, the punishment of such offences by way of imprisonment is aimed at deterring such behaviour and discouraging other potential offenders from undertaking such vile and offensive behaviour without remorse or reprimand.

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