Can a Social Media Post Amount to a Criminal Offence?

New South Wales politician Alex Greenwich MP has threatened a three-prong legal attack against former politician and One Nation candidate Mark Latham over a homophobic Tweet posted earlier this year.

But the One Nation Leader remains resolute in his refusal to apologise for the post, famously stating ‘never apologise, never explain’.

The Homophobic Tweet

On 22 March 2023, Latham spoke at an event for “religious freedom and parental rights” which was attended by LGBT counter protesters. At the event, the counter protesters were threatened and had to be escorted to safety by police.

In response to the event, Greenwich, who is gay and an outspoken advocate for LGBT rights, told the Sydney Morning Herald:

“Mark Latham is a disgusting human being and people who are considering voting for One Nation need to realise they are voting for an extremely hateful and dangerous individual who risks causing a great deal of damage to our state.”

In response to this comment, Latham Tweeted:

“Disgusting? How does that compare with sticking your dick up a bloke’s arse and covering it with shit”

This homophobic Tweet provoked criticism across the political spectrum, including by One Nation leader Pauline Hanson. 

Following the uproar, Latham responded: “I’m not apologising or not backing down”, stating “never apologise, never explain”.

So, Can a Social Media Post Amount to a Criminal Offence?

The short answer to this question is, yes it can.

Indeed, there are several offences in both Federal and State legislation capable of capturing online conduct.

These offences include:

• Using a carriage service to menace, harass or cause offence,
• Stalk or intimidate with intent cause fear of physical or mental harm, and
• Criminal defamation.

Indeed, Alex Greenwich has one of these offences in mind in his proposed three-pronged legal approach to Mark Latham’s post.

Potential Legal Action

In that regard, Greenwich announced earlier this week that if Latham does not apologise, he will prepare:

• A complaint to NSW Police Force on the basis that Latham has used a carriage service to menace, harass or cause offence;
• A complaint to the Anti-Discrimination Board of NSW on the basis of homosexual vilification; and
• A claim in civil defamation. 

The Offence of Using a Carriage Service to Menace, Harass or Cause Offence

Section 474.17 of the Criminal Code Act 1995 – which applies across Australia – prescribes a maximum penalty of 3 years in prison for using a ‘carriage service’ – such as phone or internet – in a way that a reasonable person would regard as menacing, harassing or causing offence.

What is Harassing?

“Harassing” is not defined in the Act.  However, acts deemed as “menaces” are defined under section 138.2 as including:

• A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
• A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

What is Offensive?

“Offensive” is a broad term. Section 473.4 of the Act states that in determining whether material is offensive, reference is to be had to:

• the standards of morality, decency and propriety generally accepted by reasonable adults; and
• the literary, artistic or educational merit (if any) of the material; and
• the general character of the material (including whether it is of a medical, legal or scientific character).

If charged, it seems likely that prosecutors would argue that Latham’s Tweet was “offensive”. 

In that regard, they would need to establish beyond a reasonable doubt it is considered offensive to “the standards of morality, decency and propriety generally accepted by reasonable adults”.

Homosexual Vilification

Making a complaint on the basis of homosexual vilification to the NSW Anti-Discrimination Board is different from a criminal offence. 

The Anti-Discrimination Board has the power to determine if an act is unlawful, and may apply civil penalties in some circumstances, but there are no criminal consequences to this process.

Homosexual vilification is outlined under section 49ZT of the Anti-Discrimination Act 1977 (NSW), which states that: 

“It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group”.

A “public act” is broadly defined under the Act and encompasses communications on the internet. 

Speech that would otherwise be vilification, will not be unlawful if:

• It’s contained in a fair report of a public act (such as this blog);
• If the defence of absolute privilege under defamation law would apply (discussed later); or
• If, as a public act, is done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Defamation

Defamation is a wrong arising from an attack on reputation, allowing person to sue another for damages (or compensation).

Words are defamatory if they convey a meaning about a person which lowers their reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.

Defamation may amount to a civil wrong for which an aggrieved person (the plaintiff) can seek damages against the publisher (the defendant) or, in some circumstances, a criminal offence.

Civil Defamation

To establish a claim of civil defamation, the plaintiff is required to establish ‘on the balance of probabilities’ (ie that it is more likely than not) that:

• The defendant published defamatory material ;
• The publication identified the plaintiff; and
• An ordinary person would consider the material that was published to be defamatory;
• The  publication of the defamatory material caused, or was likely to cause, serious harm to the party’s reputation.

The Defamation Act 2005 (NSW) outlines a number of defences available when sued for defamation, which include:

• The defence of justification under section 25 of the Act, which applies when statements made are “substantially true”.
• The defence of absolute privilege under section 27 of the Act, where special allowance is made under law for material to be published. Eg. during parliamentary debates or as part of court proceedings.
• The defence of honest opinion under section 31 of the Act, where communications are an opinion of the defendant, related to a matter of public interest and based on proper material. 

Criminal Defamation 

Section 529(3) of the Crimes Act 1900 (NSW) is headed ‘Criminal Defamation’ and makes it an criminal offence punishable by a maximum penalty of 3 years in prison for a person, without lawful excuse, to publish a matter that is defamatory of another living person knowing the matter to be false and intending to cause serious harm to that person or any other person, or being reckless as to whether such harm would be caused.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You published a matter that was defamatory to another living person,
2. You intended by doing so to cause serious harm to that person or to any other person or were reckless as to whether serious harm would be caused,
3. You knew the published matter was false, and
4. Where there is evidence of a lawful excuse, you did not have a lawful excuse for your conduct.

What is a lawful excuse?

Subsection 529(4) of the Crimes Act provides that:

“A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant.”

So, the defences that apply to claims of civil defamation also apply to the criminal offence.

In addition to this, general criminal law defences also apply including duress and necessity.

An Unjustifiable Restriction on Political Speech?

All of the grounds relied upon by Greenwich raise questions of free speech, particularly the constitutionally protected freedom of political communication, given the context of the Tweet.

The 1997 High Court case of Lange v Australian Broadcasting Corporation, first recognised that there is an implied right to political communication under the Australian Constitution. In particular, this right can be found in foundational principle of representative democracy. This right is not absolute, but does provide one of the few definitive free speech protections in Australia.

Professor Jeremy Gans from the University of Melbourne has opined that should the Greenwich case progress, it could provide an interesting ground for a constitutional challenge, particularly of the relevant provisions of the Criminal Code.

A similar provision under the Code dealing with offensive material sent through the post was challenged in the 2013 High Court case of Monis v The Queen.  This case involved a man sending letters to parents, spouses and other relatives of Australian soldiers killed while on active service in Afghanistan. 

The letters contained expressions of sympathy to the relatives of the deceased, but also many offensive statements including calling the decease person’s service as “murders of innocent civilians”, referring to one deceased solider as the “dirty body of a pig” and making comparisons to Hitler. 

The New South Wales Court of Appeal found the section was valid. On appeal, the High Court was divided evenly on the question (3-3). As a result, the decision of the Court of Appeal was affirmed.

Whether Latham’s vulgar Tweet fits the bill of protected political speech would be an interesting question for the High Court to answer, particularly given the increasingly heated style of political debate online.