Misuse and Legal Consequences

Misuse of social media may involve:

(i) a breach of employment obligations

(ii) serious misconduct

(iii) sexual harassment

(iv) unlawful discrimination

(v) a criminal offence (see below)

(vi) a threat to the security of Department ICT resources

(vii) an infringement of the privacy of staff and other persons such as students or parents, or

(viii) exposure to legal liability.

This will be regarded as a serious matter and appropriate action, including termination of employment, may be taken.

Where there is a reasonable belief that illegal activity may have occurred the Department may report the suspected illegal activity to the police.

Offences and criminal charges

Various Victorian and Commonwealth legislation create criminal offences for the misuse of social media. Some such offences include the following:

Menace, harass or cause offence

It is a criminal offence under the Criminal Code Act 1995(Cth) to use a carriage service to menace, harass or cause offence.

Child pornography

It is a criminal offence under the Crimes Act 1958 (Vic) to print, produce, possess or procure child pornography.

Child pornography is defined as any film, photograph, publication or computer game that describes or depicts a person who is under 18 years of age engaging in sexual activity or depicted in an indecent sexual manner.

It is also a criminal offence under the Crimes Act 1958 (Vic) to invite or procure a person who is under 18 years of age to be in any way concerned in a sexual performance.

Although these criminal offences were created to protect young people from predatory adults, young people may well commit such offence by engaging in practices such as ‘sexting’.

Any instances involving these actions should immediately be reported to the Victoria Police Sexual Offences and Child Abuse (SOCA) Unit and a report made to the Emergency & Security Management Unit on (03) 9589 6266 (24-hours).

Stalking

Stalking is a criminal offence under the Crimes Act 1958 (Vic).

Stalking occurs where an offender engages in a course of conduct with the intention of causing physical or mental harm to another person, or arousing apprehension or fear in that other person; and the course of conduct has that result. Examples of stalking include:

  • following the victim (including through electronic means)
  • contacting the victim by telephone, text message, email or other electronic communication  
  • publishing on the internet or by an email or other electronic communication a statement or other material relating to the victim or statement or material purporting to originate from the victim
  • causing an unauthorised computer function in a computer owned or used by the victim
  • entering or loitering outside or near the victim’s place of residence or of business or any other place frequented by the victim
  • giving offensive material to the victim, leaving it where it will be found by, given to or brought to the attention of, the victim (including through electronic means)
  • keeping the victim or any other person under surveillance.

Other legal consequences

Defamation

If an employee publishes information that identifies a person; and the published content lowers the person’s standing, brings that person into hatred, ridicule or contempt, or causes others to shun or avoid that person; the employee who published the information may find themselves personally defending an action of defamation.

Copyright

Copyright is the legal protection of literary, dramatic, artistic, and musical works, sound recordings and performances. It provides creators with the legal right to control the use of their creations. Publishing such works without the requisite permissions from the creator(s) may amount to a breach of the Copyright Act 1968.