Right: NSW Attorney-General Greg Smith has warned that social media, if not controlled or regulated, can encourage "vigilantes" to take the law into their own hands.
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Arguments showing the negative impact of social media on law enforcement
1. Social media is a largely unregulated area where offences are actually committed
Internationally-based social media networks are difficult to bring under the conventional rule of law. Additionally, a whole range of crimes, such as inciting racial hatred and other forms of vilification are very easy to commit and disseminate using social media sites. Internet bullying, sometimes with fatal results, has become such a widespread phenomenon that many jurisdictions are trying to bring it more directly under the control of the law.
Queensland Attorney-General, Jarrod Bleijie, has noted that it is extremely difficult for Australians who feel defamed or ridiculed on social media websites to start legal proceedings to identify their anonymous online tormenters.
Mr Bleijie stated, 'They have to serve documents in the original jurisdiction, which is generally overseas.
The costs are almost prohibitive. It's an access to justice issue.'
Mr Bleijie has argued that there need to means of requiring for social media organisations to comply with governments across jurisdictions. He has claimed that changing laws should be considered if those organisations kept supporting systems that allowed anonymous trolling.
Mr Bleijie has added, 'Absolutely, I think the old days of a letter to the editor with an address and a name attached was good policy.
Now you can register online, blog on anything, put smear stories on. It's pretty nasty stuff.
I think there is a need for law reform in this space.'
2. The use of social media can make the accurate identification of suspects more difficult
If someone's face has been shown on social media in relation to a crime, eye-witnesses who have viewed that social media are then likely to identify the person whose photograph they have seen, whether that person actually committed the crime or not.
This is one of the reasons why Victoria Police was so concerned that photographs of the accused were posted on Facebook and YouTube in the Jill Meagher case. Such supplanting of one 'memory' with another is a well-established phenomenon in police investigations and one police are trained to avoid. Police refer to it as 'mug-shot exposure'.
'Mug-shot exposure' occurs when a witness initially views a set of photos and makes no identification but then later selects someone who appeared in a previous line-up. Studies have shown that while 15% of witnesses mistakenly identified an innocent person viewed in a line-up the first time, that percentage jumped to 37% if the eyewitness had seen the innocent person in a prior mug-shot. Police, therefore, are careful to ensure that such witness contamination does not occur. Those posting pictures on social media demonstrate no such discretion and so are likely to invalidate any subsequent identification of a suspect by a witness. Either the witness's accurate memory can be called into question by the defence because images of the defendant are in the public domain or the witness may actually misidentify a suspect because of the influence of the social media image.
3. Social media encourages vigilantism
There is concern that using social media to identity possible criminals will encourage vigilantism, that is, people will not only help identify possible criminals, they will attempt to punish those they believe have broken the law. This is a particular concern in high-profile cases with a strong emotional appeal; however, it is a disturbing possibility more generally.
The New South Wales Attorney-General, Greg Smith, has recently warned of the potential to 'create a sense of vigilantism in the community'. The New South Wales Deputy Privacy Commissioner, John McAteer, has similarly criticised the increased use of social media and CCTV footage by the public to catch alleged criminals.
In relation to a case where the owner of a missing dog posted photographs of the boy believed to have stolen the animal on Facebook, Mr McAteer has stated, 'It's concerning that people would post images of children online without the consent of a responsible adult. Law enforcement is a matter for law enforcement bodies and members of the public shouldn't be taking matters into their own hands.'
The woman whose dog has disappeared does not want any action taken against the boy pictured; however, others have warned that once the image was put up it was no longer within her control how others would respond to it. David Vaile, executive director of the Cyberspace Law and Policy Centre at the University of New South Wales has stated, 'By putting stuff online you are basically saying "If it feels good, go out and lynch someone".'
The concern in such cases is that irate members of the public will act against the supposed perpetrator. In this instance the boy was 'identified' online and a number of threatening remarks were made about him. Among the 8000 people to visit the Help Us Find Buckie Facebook page, some describe the boy - who has not been charged, let alone found guilty of any crime - as a 'mongrel' and a 'little shit'. It has been suggested that he should be castrated, assaulted and burned alive. One respondent has written, 'Kill the kid; kill the parents and the entire family!!' It was then discovered that the boy who had been named was not the child whose image had been posted showing him with the missing dog.
There have been growing numbers of vigilante acts reported from around the world that appear to be associated with social media. In October 2012, an English court heard that a man had used social media to track and attack someone who allegedly raped his wife as a schoolgirl. Similarly, a 52-year-old baseball umpire in New Jersey last year bashed a man he mistakenly thought had stolen his iPhone - after believing he had tracked the culprit using a smartphone application.
Thus there are concerns not only that online vigilantes will act against those who may have done something wrong and further break the law themselves; there are also concerns that vigilantes will act against the wrong person because unlike the legal justice system they have no established standards of proof.
David Vaile from the Cyberspace Law and Policy Centre at the University of New South Wales has stated, 'It's a reversion back to the era when someone is supposed to have the right to be judge, jury and executioner. There is no quality control or qualifications required in terms of common sense or decency or fairness or capacity to show any of the restraint required of the legal system.'
4. Social media can impede the proper functioning of the legal system
The Australian legal system aims to guarantee all defendants a fair trial. As part of ensuring a fair trial, no material prejudicial to the defendant, that is, likely to create a negative perception of the defendant in the minds of judge or jury, is to be publicly circulated before the trial is over.
The sub judice contempt law prohibits the publication of details of the defendant's previous criminal convictions, before the end of the trial. This is because it may prejudice the judge, magistrate or jury against the defendant, if there are many previous convictions. This would reduce the chances of a fair trial. Previous convictions (often called antecedents) may not be revealed until after the verdict has been reached. They are then considered by the court to help it to decide on an appropriate punishment.
The sub judice contempt law is biding for all conventional Australian media; however, it is far harder to regulate the material that is made available on social media and other international online sites. A spokesman for Victoria's Attorney-General, Robert Clark, has stated, 'Issues relating to social media and the law go well beyond State boundaries...and any reforms should be based on a coordinated national approach, if at all possible.'
Within minutes of the arrest of the man ultimately charged with Jill Meagher's rape and murder, there were angry posts calling for the accused man to be tortured and 'lynched'. There were also many posts revealing the man's face and making claims about his supposed criminal history. Some even linked him with other assaults for which no charges have as yet been laid. Victoria Police has since claimed that Facebook then refused to take down potentially prejudicial material when requested to do so.
Such social media comments could potentially make it impossible to empanel an impartial jury and so prevent the accused going to trial. Some legal commentators have warned that the result of such social media denigration of the accused could be that a stay or delay in the trial, which could be permanent.
Mark Polden, author of The Journalist's Guide to Media Law, has noted that social media commentary has potentially dire consequences for the administration of justice and should be avoided.
Mr Polden has stated, 'It's not unfathomable that there could be such a conflagration, such a firestorm of social media commentary about a particular case that an application could be made that an individual cannot get a fair trial...
Individuals [posting comments] need to ask themselves: does what I'm doing have the potential to interfere with a fair trial? Could my sense of moral outrage lead to someone not being able to get a fair hearing?'
In the Jill Meagher case, despite direct requests from Victoria Police, Facebook did not remove pages containing potentially prejudicial material to the accused. This has been taken as indicating that there is currently insufficient control over social media sites, especially those based in other jurisdictions.
5. Social media postings can be used to intimidate complainants
It has been noted that information contained in postings on Facebook and other social media sites or blogs can be used to intimidate complainants.
In an article published in the Law Institute of Victoria's Journal in October, 2012, criminal lawyer Bill Doogue, principal of Doogue & O'Brien, stated that doing a social media check is now an early automatic step in his firm's defence process.
Mr Doogue claimed, 'In defence matters, you would go straight to social media, straight to Facebook to see if they [the complainant] had a site. You would see if they had been tweeting about something related. You would want to get a copy of those posts or subpoena them fast.'
In the same article, prominent criminal lawyer Rob Stary acknowledged that social media is used as a matter of course in the 3000-odd cases his firm handles each year. Accused, accuser and witnesses have their social media sites checked to provide information about a person or situation.
Mr Stary has stated, 'We acted for a man who, via Facebook, had enticed two underage girls to go away with him. He dumped them out of Melbourne. We got the girls' Facebook sites and they were sexually explicit, very suggestive. We went to the DPP and said, "We are going to cross-examine the girls about their Facebook postings which will be damaging and humiliating so ask them if they want to proceed." The girls were asked and they did not proceed.'
Mr Stary further stated, 'In every case of that sort of sensitivity [of a sexual nature], we check every witness - for and against - about their Facebook site. You need to be very wary about what you are posting on your Facebook page.'
Critics of such uses of Facebook and other social media sites argue that much of what is posted on these sites is not intended seriously and so it is inappropriate to use such material to make judgements about people or, as in the case to which Mr Stary referred, to pressure them to withdraw complaints. Relatedly, a United States lawyer for Twitter, Terryl Brown, has claimed that it is 'unfair' and 'unjust' for the courts to be able to access material that has been deleted or that is too old to be accessed publicly. American judges have not, however, supported this view.