2012/18: Does social media, including Facebook, assist in law enforcement?
What they said...
'If they're going to make a lot of money out of the community, they've got to invest in the community too ... behave appropriately and ensure that Facebook doesn't incite hatred or doesn't act in a way that undermines the legal system'
Victorian Chief Commissioner, Ken Lay, commenting on Facebook's refusal to take down pages without a court order
'I just don't think jurors will be influenced by what they read on social media in the way authorities fear'
Justin Quill, a director of Kelly Hazell Quill Lawyers
The issue at a glance
On October 5, 2012, Australia's attorneys-general met in Brisbane to discuss social media's impact on the right to a fair trial.
The Victorian Attorney-General, Robert Clark, will lead a group to create national guidelines on social media after fears that comments on Facebook and Twitter could jeopardise the trial of the man accused of killing ABC journalist Jill Meagher.
The working group will be comprised of mainstream and social media representatives, judicial officers and police.
It will make recommendations on how to regulate the spread of prejudicial material on social media, including warnings for users (which courts and police could issue on Facebook or Twitter) and protocols for social media companies.
It will also propose directions that courts can give to juries on social media, examine laws that detail juror offences and assess what research was needed to determine how social media affected jurors' decisions.
The disappearance and then murder of Jill Meagher focused a great deal of attention on the role of social media in law enforcement. Meagher's family used social media in an attempt to locate the missing woman; while social media was one of the means by which Victoria Police circulated CCTV footage of Meagher taken some time before she was assaulted and killed. These uses have highlighted the advantages that social media can offer. The subsequent misuse of social media by those who have denigrated the accused in this case has highlighted some of the dangers it represents.
Legal and media experts are awaiting with interest the findings of the working party investigating social media's impact on the legal system.
Background
(Most of the information contained below comes from a Wikipedia entry titled 'Use of social media websites in investigations. The site can be accessed at http://en.wikipedia.org/wiki/Use_of_social_network_websites_in_investigations)
Social network services are increasingly being used in legal and criminal investigations. Information posted on sites such as MySpace and Facebook has been used by police and university officials to prosecute users of said sites. In some situations, content posted on MySpace has been used in court to determine an appropriate sentence based on a defendant's attitude
Facebook, a social network service, is increasingly being used by school administrations and law enforcement agencies as a source of evidence against student users. The site, a popular online destination for college students, allows users to create profile pages with personal details. In the early years of the site, these pages could be viewed by other registered users from the same school, including resident assistants, campus police, or others who signed up for the service. The user privileges and terms of service of the site have since been changed to allow users to control who has the ability to view their content.
Recent disciplinary action against United States students based on information made available on Facebook has spurred debate over the legality and ethics of school administrators' harvesting such information. Facebook's Terms of Use specify that 'the website is available for your personal, non-commercial use only', leading some to believe that college administrators and police may not use the site for conducting investigations. However, Facebook spokespeople have made clear that Facebook is a public forum and all information published on the site should be presumed available to the general public, school administrators included. Legal experts agree that public information sources such as Facebook can be legally used in criminal or other investigations.
In the aftermath of the 2011 Vancouver Stanley Cup riot, community participation in assisting police to identify the rioters has been described as unprecedented, police admitted to being overwhelmed by the amount of evidence provided by social media. Equally, the number of cases where evidence of crime has been detected on a social media site and then acted on by police is large and growing. In February 2006, for example, a 16-year-old Colorado boy was arrested for juvenile possession of a firearm after police saw pictures that he had posted on MySpace of himself posing with rifles and handguns. He was convicted in April 2006.
In August 2012 the International Association of Chiefs of Police (IACP) conducted its second annual survey on law enforcement's use of social media tools. There are 600 law enforcement agencies from 48 states represented in the survey results. The survey found
- 92.4% of agencies surveyed use social media.
- The most common social media use by survey respondents was investigations, 77.1%.
- 56.3% of agencies not currently using social media are considering its adoption.
- 61.9% of agencies surveyed have a social media policy and an additional 18.9% are in the process of crafting a policy.
- 60% of agencies surveyed state that they are somewhat concerned or very concerned about online radicalisation and violent extremism.
- 74% of agencies report that social media has helped solve crimes in their jurisdiction..."
Internet information
On September 23, 2010, the ABC ran a report on the value of social media in finding missing persons, whether used by official agencies or individuals.
The full text of this report can be found at http://www.abc.net.au/news/2010-09-23/social-media-aids-search-for-missing-persons/2271880
On April 6, 2011, The New York Times published a background piece titled 'Police Lesson: Social Network Tools Have Two Edges'. The piece looks at some of the advantages and disadvantages of social media from a police perspective.
The full text can be accessed at http://www.nytimes.com/2011/04/07/us/07police.html?pagewanted=all&_r=1&
In August 2012 the eGovernment Resource Centre published the results of an International Association of Chiefs of Police (IACP) study on the use of social media by law enforcement agencies. The full text of this report can be accessed at http://www.egov.vic.gov.au/government-initiatives/law-and-justice/law-enforcement/law-enforcement-s-use-of-social-media-tools-2012-survey-results.html
On August 11, 2012, The Daily Camera ran a report on the manner in which many United States police forces are using a dedicated social media network to keep in touch with their communities.
The full text of this article can be found at http://www.dailycamera.com/nation-world-news/ci_21294152/police-use-social-media-tools-inform-citizens
On September 28, 2012, Crikey published a comment by media reporter Matthew Knott titled 'Jill Meagher case: Bolt, Twitter users warned on comment'
The piece considers the possible threat to a fair trial posed by social media posters and others writing for conventional media.
The full text of the article can be found at http://www.crikey.com.au/2012/09/28/jill-meagher-case-bolt-twitter-users-warned-on-comment/
In October, 2012, The Victorian Law Institute Journal published an opinion and background piece by Carolyn Ford titled 'Social media is changing the face of crime from the perspective of criminals, police and lawyers'. The piece looks in detail at some of the uses to which social media is currently being put by legal representatives and law enforcement officers.
The full text of this article can be accessed at http://www.liv.asn.au/News-and-Publications/Law-Institute-Journal/Archived-Issues/LIJ-October-2012/Working-the-net--Crime-and-social-media
On October 5, 2012, The Sydney Morning Herald ran a report titled, 'Social media may face gag as MPs act to protect trials'
The report looks at the formation of a special working party, called for by the federal and states attorneys general to look at how to protect the integrity of trial by jury from the impact of social media postings.
http://www.smh.com.au/technology/technology-news/social-media-may-face-gag-as-mps-act-to-protect-trials-20121005-274rs.html
On October 5, 2012, The Sydney Morning Herald ran a news report titled 'Facebook lacks "social responsibility", says top cop'. The article details the criticisms made by Victorian Chief Commissioner of Police Ken Lay of social media site, Facebook.
The report can be accessed at http://www.smh.com.au/technology/technology-news/facebook-lacks-social-responsibility-says-top-cop-20121005-273lk.html
On October 11, 2012, MediaShift published a background and opinion piece by Julie Posetti titled '"Trial by Social Media" in Australia Prompts Clash over Accused Murderer'. The article discusses some of the implications of the Jill Meagher case for the use of social media in solving crime and its impact on trial by jury.
The full text of this article can be accessed at http://www.pbs.org/mediashift/2012/10/trial-by-social-media-in-australia-prompts-clash-over-accused-murderer285.html
On October 19, 2012, The Illawarra Mercury ran a news report detailing the use of social media by a woman whose Staffordshire bull terrier was apparently taken. The CCTV footage that the dog owner posted on Facebook showed a boy, later misidentified, with the dog.
The full text of this report can be found at http://www.illawarramercury.com.au/story/408270/buckie-and-the-wrong-boy-the-worrying-line-between-cyber-sleuths-and-vigilantes/
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.
Arguments showing the positive impact of social media on law enforcement
1. Social media assists in the locating of missing persons and persons of interest to the police
There are a variety of agencies, starting with the police, to who concerned family and friends can go when a person is missing. What the new social media has provided is easy and immediate contact to a very wide range of interested others who may have seen the missing person. The social media also provides a means of contacting the missing person directly if he is she has not been kidnapped or placed under some other form of duress.
Police are commonly considered the primary agency dealing with missing persons. Police in each Australian State and Territory take reports of missing persons and investigate cases, sometimes depending on the circumstances of the case, in conjunction with other agencies such as State Emergency Services, the Department of Foreign Affairs and Trade, or departments responsible for youth and family services. Police generally limit their investigation of missing persons to cases where there are fears for the safety or concerns for the welfare of the missing person.
The Salvation Army Family Tracing Bureau provides a family tracing service whose primary purpose is to trace missing relatives and reunite families. The Australian Red Cross provides a tracing agency to locate and reunite missing persons in families separated as a result of war, internal disturbance, natural or other disasters. International Social Service of Australia involves social work rather than a tracing agency per se, but provides a tracing service in specific circumstances.
All the above law enforcement bodies, groups or agencies can make use of social media in an attempt to locate a missing person.
Australian Missing Persons Register founder, Nicole Morris, credits social media with being a major factor in helping many Australians find missing family members.
Ms Morris has stated, 'It's an effective and immediate way to reach a huge number of people in a short space of time.
If I've got an urgent missing case then I can post something right away. I've reached so many people and amongst those people I'm reaching, there will be people who are physically and geographically close to where that missing person may be.' Where the police suspect a missing person may be in danger, social media can be a valuable means of making the person's description available to a wide cross-section of the community.
Regarding persons of interest in police inquiries, Facebook has a Persons of Interest site which posts police reports on people of interest to them in their inquiries. The site has received a positive rating from The Western Australia Police, the Queensland Police Service and the New South Wales Police Force.
2. Social media assists in gathering evidence on suspects
Social media are a valuable and increasingly-employed means of gathering information and potential evidence on suspects.
Police regularly canvass the social media, looking at what information is public and sometimes create fake online identities to befriend suspects and view their private information. Authorities also can request private data directly from social networks with subpoenas or warrants, or make an emergency request for user information if they think there's an imminent threat of danger.
These techniques are becoming particularly prevalent in the United States. According to a recent survey of 1,221 federal, state and local law enforcement agencies in America who use social media, four out of five officials used social media to gather intelligence during investigations. Half said they checked social media at least once a week, and the majority said social media helps them solve crimes faster. The online survey was conducted by LexisNexis Risk Solutions and had a 2.8% margin of error. The survey found that Facebook is the most fruitful social network for law enforcement, followed by YouTube.
One pioneer in this emerging area is the city of Cincinnati, Ohio, where police dismantled a local street gang and arrested 71 people in 2008 following a large nine-month investigation that used social media to identify key members. Collaborating with the University of Cincinnati's Institute of Crime Science, the police created databases of information scraped from social networks, existing police records and phone records, then used software to analyse the data and establish links between suspects. As with most police departments, Cincinnati's social-media efforts began small, with a few officers checking online profiles on their downtime. Then police teamed up with the university and received training from social-media experts.
Some 'public' information takes some skill to find. Someone can have their Facebook settings as private as possible, but their friends or relatives might not be as savvy, allowing police to collect information by looking at what a suspect posts on their friends' public pages. Drug dealers have been known to post innocuous public updates that include location information so clients -- and unwittingly, law enforcement -- know where to find them, police said.
3. Social media can be used to inform the public
Police, especially in the United States, make use of social media as a way of warning the public of potential risks. As an instance, at Oakland airport after a shooting in 2012, while the armed man was still unapprehended, police sergeant Chris Bolton quickly fired off a flurry of text alerts to thousands of nearby residents through a dedicated social media tool for law enforcement agencies.
The initial alert warned, 'Stay out of area. Multiple shooting victims reported. Medical on-scene. Police are evacuating a nearby, affected business.' Subsequently the officer kept those in the area informed with alerts such as 'Possible suspect in custody. No imminent public safety threat appears to exist in immediate area.'
Almost 6,000 law enforcement agencies in the United States are now deploying the public notification service Nixle to provide residents with real-time alerts on crimes in progress, traffic messes and missing children. Previously, the service has helped police in Amarillo, Texas, capture a fugitive wanted for aggravated robbery and probation violation; and authorities in Fayetteville, N.C., seized a suspect wanted for armed robbery soon after a Nixle alert was sent to residents.
United States Police officials have made particular use of Nixle in part because of its security features that make it less susceptible to hacking than some social media. Also, the company has a partnership with the National Law Enforcement Telecommunications System (NLETS), which allows local, state, federal and international public safety agencies to exchange sensitive information.
Police have also used social media to improve relations between the force and the local community by creating their own online presence. Social media also provides an avenue to help humanize police departments and show that law enforcement officers are also members of the community they serve. Social media can be an effective way for agencies to highlight their officer's accomplishments, make announcements regarding enforcement campaigns and provide messages.
Within Australia, police have used existing social media rather than the dedicated services being favoured within the United States. By way of example, Victoria Police has a Twitter page, the Queensland Police Force has a Facebook page, the Northern Territory Police Force has a Facebook page and the Western Australian Police has both a Twitter and a Facebook page. Announcing its Facebook page the Western Australian Police stated, 'The WA Police Facebook page provides up-to-the-minute information for the public, covering news, law changes, appeals for information, crash statistics, articles on police events and operations, recruitment particulars, arrests and emergency information.'
In April, 2012, Victoria Police launched a Facebook program called Eyewatch, an initiation aimed at getting online information from the public to help solve crime. The pilot program has six Facebook pages which cover five areas of Melbourne - Darebin, Brimbank, Geelong, Hobsons Bay and Yarra Ranges - and the public transport system. The pages allow people to report anti-social and disorderly behaviour and if the trial is effective, Eyewatch pages will be rolled out across the state.
4. Juries can be trusted not to be influenced by social media
It has been argued that juries are less susceptible to social media influence than many commentators fear. It has also been claimed that the instructions given the jury and the nature of the trial process are likely to outweigh any impressions received from the social media.
In an opinion piece published in The Herald Sun on October 3, 2012, Justin Quill, a director of Kelly Hazell Quill Lawyers, wrote, 'I just don't think jurors will be influenced by what they read on social media in the way authorities fear. A trial will overtake social media in a juror's mind. Imagine the impact of sitting in the front row of a trial for six or eight weeks.'
Justin Quill further explained, 'Imagine swearing an oath to do your duty. Being constantly reminded that you have someone's future in your hands. Now imagine the evidence unfolding before your eyes.
Some witnesses look and sound convincing. Others fall apart under cross-examination. You see witnesses' expressions and hear the intonation in their voices. You might hear from the defendant. You will certainly hear from his lawyers.
All the while, the judge is giving you directions on what you must do.'
Quill concluded, 'Surely that will have much more of an impact than a vague memory of something read many months earlier. Something written by an unknown person about things they're probably guessing at.'
According to this line of argument, the quality of Australia's criminal justice system, especially the quality of the exchange between the defence and the prosecution, followed by the direction of the judge, should ensure that jurors are not damagingly influenced by information they may have seen on social media.
5. There is already significant legal redress available against those who commit online crimes, and gaps in the law are being filled
Legal commentators have noted that although it may be more difficult to prosecute those who commit offences such as defamation or racial and religious vilification online, there laws that still apply and prosecutions can and are made. It has also been noted that many jurisdictions, including Australia, are amending their laws to make it easier to prosecute those who commit online offences.
In defamation law, there can be no doubt that comments posted on social media can be the basis of litigation. In the highest profile such case, a Melbourne resident, Joshua Meggitt, successfully sued author and columnist, Marieke Hardy, after she incorrectly named him as the author of a hate blog. Mr Meggitt then took the fight further, taking action against Twitter, where the defamatory remark was most widely publicised. That case is ongoing.
Many people have called for stronger legal redress against online trolls - those who use their anonymity to launch sustained and vicious attacks on others. However, it has been claimed there is no need for new legislation to deal with this problem as the law prohibiting the use of a carriage service to threaten or harass has been used in the successful prosecution of at least two people in recent years. Many legal commentators note that what is needed is increased public awareness that there are laws available under which action can be taken.
Where Australia's laws do need to be sharpened to deal with the new electronic media there is action occurring to ensure these changes are made.
The state and federal attorneys general have meet for urgent talks about the dangers of sites such as Facebook and Twitter influencing juries and undermining trials. The action was taken after Facebook refused Victoria Police requests immediately to take down hundreds of provocative Facebook messages directed at the man alleged to have assaulted and killed Jill Meagher. The co-chairman of the Law Institute of Victoria's criminal law section, James Dowsley, has supported calls for the Law Reform Commission to investigate problems associated with social media and its influence on juries.
Mr Dowsley has stated, 'People need to careful not to publish anything that might lead to risking a fair trial or interfering in the process of justice.' People have also been warned that even in advance of changes to Australian law to deal specifically with social media crime, they could well have action taken against them under current laws. Victoria Police's E-Crimes Squad is investigating social media posts that appeared to breach the state's contempt of court laws.
Further implications
The social media is a growing phenomenon and its implications for conventional law enforcement are enormous. Social media platforms such as Twitter and Facebook have enormous reach, giving law enforcement officers and others almost immediate contact with a vast readership.
In the Jill Meagher case, a 'missing' poster for Meagher, posted by her husband Thomas from his own Facebook account, was shared almost 3,000 times, while the 'Help us find Jill Meagher' Facebook page, set up just hours after it was announced last Sunday that she was missing, garnered over 67,000 supporters by Wednesday morning, and a further 60,000 in the next 24 hours. On Twitter, Meagher's name was mentioned more than 12 million times using #jillmeagher and #meagher hashtags, which became trending topics.
The level of interest in finding Jill Meagher allowed the police to circulate widely CCTV footage of the missing woman and an unidentified man to whom she was seen speaking, which resulted in a significant number of people coming forward to the police with information. Though the suspect was ultimately identified internally by the homicide squad, there was a very strong public response with some 550 calls to Crime Stoppers. The power of the social media to draw on public support in identifying of persons of interest or gathering other evidence is one of its great strengths.
However, there is obviously a series of negative possibilities also associated with the use of social media as a law enforcement tool. Social media sites are not regulated in the manner conventional print media is. The power of the social media message is its speed and multi-connectedness. Thousands of people can access and add to a message in a matter of hours or less. This is in part because there is no regulating influence; there is no editor to go through; no newspaper lawyers to check with; no print media standards to be met. This was evident immediately after a suspect was arrested in the Jill Meagher case, as the social media outlets that had previously sought to find Ms Meagher became filled with posters calling for the punishment of her alleged killer and, more concerningly, giving information about supposed previous crimes of which he had been convicted and others that he may have committed.
Victoria Police became alarmed that such comments would make it impossible to empanel an impartial jury and, in a worst case scenario, would create a situation where charges would have to be dismissed because there could be no fair trial.
The responsibility is a three-part one. Firstly there is the responsibility of those who manage platforms such as Twitter and Facebook. Victoria Police has been scathing in its criticism of Facebook's refusal to take down potentially prejudicial material without a court order.
Victorian Chief Commissioner of Police, Ken Lay, has stated, '[Facebook] is sucking an enormous amount of money out of the community, [but] isn't prepared to invest in that community by helping it stay safe and acting in an appropriate manner...For Facebook to say to me: "Well sorry, give me a court order and we'll think about it", it just frustrates me.
That's just nonsense to me. If every business behaved like that, we'd be in a sorry state in this community.'
The second tier of responsibility rests with the users of social media. Jill Meagher's family appear to have been aware of this. Tom Meagher, Jill Meagher's husband, warned, 'While I appreciate all the support, I would just like to mention that negative comments on social media may hurt legal proceedings, so please be mindful of that.'
Victoria Police has also acknowledged that when the offending comments were finally taken down, this was by individual posters, not by Facebook.
Victorian Chief Commissioner of Police, Ken Lay, has stated, 'I just wonder if the answer isn't going to be Facebook users.
We've seen some positive signs from the Victorian community in the social media space over the last little while about changing opinions and I just wonder when the users will say "Enough's enough and this shouldn't be tolerated". That's when they'll see the light.' Thus it would appear that a growing level of education and awareness among social media users will help to reduce the number of violations of legal process that occur on the Internet.
Finally there need to be effective legal sanctions applied to those who do not adequately manage their sites within the constraints of the law or who post material that breaks the law. Some of such laws already exist; others are in the process of development. It now requires that they be more consistently applied. This in itself will be a process of education.
Newspaper items used in the compilation of this issue outline
H/SUN, October 3, page 26, comment by Justin Quill, `Trust the jury to get it right'.
http://www.heraldsun.com.au/opinion/trust-the-jury-to-get-it-right-in-the-jill-meagher-case/story-e6frfhqf-1226486909719
H/SUN, October 2, 2012, page 22, editorial (ref to trials and prejudicial evidence), `Twits and fair trials'.
http://www.heraldsun.com.au/opinion/reckless-comments-on-facebook-and-twitter-concerning-jill-meaghers-alleged-killer-compromise-trial/story-e6frfhqo-1226486183529
H/SUN, October 2, 2012, page 22, comment by Charlie Bezzina, `Fighting crime is the responsibility of us all'.
http://www.heraldsun.com.au/opinion/fighting-crime-is-the-responsibility-of-us-all/story-e6frfhqf-1226486185353
H/SUN, October 2, 2012, page 8, news item by G McArthur, `Fair trials in danger'.
http://www.heraldsun.com.au/news/victoria/victoria-to-push-for-new-national-laws-to-cut-the-risk-that-social-media-will-jeopardise-trials/story-e6frf7kx-1226486126154
AUST, October 2, 2012, page 8, news item by P Akerman, `Facebook asked to remove hate posts'.
http://www.theaustralian.com.au/news/nation/social-media-giant-still-deciding-whether-to-agree-to-police-request/story-e6frg6nf-1226486151711
AGE, October 2, 2012, page 3, news item by R Wells, `Facebook refuses request to drop Meagher page'.
http://www.theage.com.au/technology/technology-news/facebook-refuses-request-to-drop-meagher-page-20121001-26vm4.html
AGE, September 29, 2012, page 5, news item by N Bucci, `Almost the same name means strife for man'.
http://www.theage.com.au/victoria/almost-the-same-name-means-strife-for-man-20120928-26r3f.html
AGE, September 29, 2012, page 4, news item by A Lowe, `Experts warn on trial by internet'.
http://newsstore.fairfax.com.au/apps/viewDocument.ac;jsessionid=3E15D94FB826A1B1009A9FC95B9D98FF?sy=afr&pb=all_ffx&dt=selectRange&dr=1month&so=relevance&sf=text&sf=headline&rc=10&rm=200&sp=brs&cls=177&clsPage=1&docID=AGE120929FL7104F62EJ