A topic of much heated debate out in the online community and through the realms of cyberspace is whether there is a social media law? Although there is no Social Media Act or Social Networking Act, it is important to recognise that the laws that apply in the real world also apply in cyberspace and that what you do with social media can have real world legal consequences.
The reality that laws in the real world can have an impact in cyberspace has been confirmed in one of Australia’s first social networking-related convictions. Ravshan “Ronnie” Usmanov posted 6 nude photos of his ex-girlfriend on Facebook. Usmanov was originally sentenced to six months imprisonment by way of Home Detention. On appeal by Usmanov, the District Court confirmed the defendant’s sentence of imprisonment, but quashed the Home Detention Order and ordered that the sentence be suspended.
The basic facts of the matter were:
- Usmanov posted six naked images of his ex-girlfriend (“the complainant”) on his Facebook page.
- At 8.01am, 8.11am and 9.39am, Usmanov sent an email to the complainant saying, “Some of your photos are now on Facebook”.
- The complainant immediately went to Usmanov’s home where she confronted him and asked him to remove the photos, which he refused to do. She then went to the police.
- The police spoke with Usmanov and he agreed to take the photos down and removed them.
- At approximately 2.50pm that day, the complainant contacted the police complaining that the photos had been reposted.
- Usmanov was arrested and charged with publishing indecent articles under the Crimes Act 1900 (NSW). The maximum penalty for this offence is a sentence of imprisonment for a period of 12 months together with a fine of up to $11,000.
In sentencing Usmanov, the Deputy-Chief Magistrate, Jane Mottley, said New-age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. 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.
Usmanov’s lawyer argued that posting the naked photos on Facebook was not a “serious offence”. To this, Deputy-Chief Magistrate Mottley replied with, “What could be more serious than publishing nude photographs of a woman on the internet?” She added, “It’s one thing to publish an article in print form with limited circulation. That may affect the objective seriousness of the offence but once it goes on the worldwide web via Facebook it effectively means it’s open to anyone who has some link in any way, however remotely.”
There have been no other NSW reported decisions which deal with the issue where indecent material has been published on Facebook or the Internet that does not constitute child pornography. The only other relevant case is Police v Joshua Ashby from the Wellington District Court in New Zealand on 12 November 2010. In this matter, Mr Ashby had posted a nude photograph of his ex girlfriend on Facebook. Not only did he log into her account and upload the image, which showed her to be naked in front of a mirror, he then unblocked her privacy settings and changed her password. The image remained online for a period of 12 hours before the police and Facebook authorities shut down the account. Mr Ashby received a full time sentence of imprisonment for a period of 4 months.
This case serves as a warning to all users of social media that there are real legal consequences for the posting of indecent or defamatory material about another person.