17 July 2013

1 7 J U L Y 2 0 1 3

Young People & The Law

The Internet, Social Media& the Law

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 noonWednesday: 2.00 pm – 4.00 pm

Friday: 10.00 am – 12 noon

TODAY’

S

TOPIC

SPart I:• Sexting• Cyberbulling • Self-Incrimination• Defamation

Part II:• Interactions with Police (Arrests,

Interviews)• Young Offenders Act• Youth Justice Conferencing

SEXTIN

G

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 11–16-year-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 LAWThe 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 PORNOGRAPHYThe 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 PENALTIESOffence Max PenaltyUsing 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 BRIEAdam 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 CRIMESIt 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 REGISTERIt 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.

CYBERBULLY

I

NG

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?

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

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.

CYBERBULLYING: ASSAULTOffende

r threatens to

use forc

e against victim

This threat

causes the victim to fear imminen

t violence

This

fear is reasonable

Assault is comprised of three main elements:

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 SCHOOLThe 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

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.

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

Each state and territory have laws which prohibit stalking and other intimidating behaviour. Examples of criminal offences in NSW include:

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 LAWVictims 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

• Always keep you log-in details private

• Never “add” someone you don’t know

Talk to a trusted adult about the bullying (a family member, a school teacher, a social worker, or the police)

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 recordedChange privacy settings

on social media sites and block the bully from accessing your information

CYBERBULLYING: USEFUL RESOURCESOrganisation Website Other InfoKids Helpline www.kidshelp.com.a

u1800 55 1800

Australian Mobile Telecommunications Associations

www.str8tlk.amta.org.au

@AustMobile Tips (Twitter)02 6239 6555

CyberSmartAustralian 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

SELF-INCRIMINATION ON SOCIAL MEDIA

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.

London Riots Schoolyard Fights Graffiti Tags

ACCESSING ONLINE INFORMATIONYoung 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 DEVICESGenerally 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

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:• Defamation is illegal and

you can sue someone who has defamed you online or offline.

• 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

If a young person has defamed someone

online:• Remove the defamatory

material immediately

• 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