Social media legislation

There was a case in the Western Australian Supreme court recently where a woman was awarded damages after her ex-boyfriend posted obscene images of her on Facebook. Cases like this always tend to bring up the argument about legislating the use of social media. In Australia, individuals don’t have a right to privacy. There is legislation for governments and organisations to maintain our private data securely, but this legislation does not extend to individuals revealing our private data. Posting obscene images on social media is further complicated by the location of the server. Facebook is based in the USA. Should that matter if someone posts our photo without our consent?

There is no question that posting obscene images without our consent is wrong. The question becomes what can we do about it? In Queensland, existing legislation has been adapted to deal with the increase of “sexting” type offences. What might start as innocent fun between two consenting adults can quickly deteriorate to “revenge porn” if the relationship sours.

Of course the easy answer is not to allow those types of photos to be taken in the first place. But that is simplifying what can be a complex issue. For individuals under 18, child pornography legislation applies, and this legislation is quite strong. For over 18’s the social media landscape is slightly more grey.

In Victoria, sexting became an offence in November 2014 – recognitiion that social media has contributed to a new genre of offences.

In the Western Australia case the defendant was found guilty of “breach of confidentiality”. It is the best finding to hope for where there no specific social media legislation preventing the distribution of images without consent. In a landmark ruling, the complainant was awarded damages for emotional distress, as opposed to economic loss. This is significant because the judge has assigned a value to emotional distress. It now sets a precedent to award damages to the complainant as well as punishing the offender.

Last year a Twitter defamation case also resulted in a payout to the complainant. Defamation is completely different because it is about promoting false information about a person, whereas sexting relates to use of images without consent. Regardless, if that image or defamatory post is forwarded or retweeted by another person (not the original poster), then the person doing the retweet or forward is also committing an offence.

What we are seeing is our legislation struggling to keep up with the various types of offences that are now committed on social media.