Click here to see our pdf fact sheet on self-incrimination.
Did you know that even if you post something under a fake name, police may be able to figure out your identity? Or that police may set up fake online accounts and add people as friends to look at their profiles?
Nothing is ever completely private online, even after you delete it. Find out how posts on social networking sites can be used as evidence against you by reading this fact sheet.
What is self-incrimination on social media?
Self-incrimination is when a person says or does something that links them to an illegal activity or crime. If the police learn about what you’ve said or done, it could be used as evidence against you or the people you know. Sometimes you might not even realise that what you’re talking about is a crime! Anything you post on a social media site may be used as evidence against you.
Here are some recent examples that made the news:
- In Sydney, two teenage girls were arrested and charged after posting videos of their punch-ups on YouTube. The girls had been involved in several fights previously but it was only after they posted videos of the fights online that the police got involved. The videos were ‘self-incriminating’ because the police were able to identify the people involved and had evidence of the fights that occurred.
- In Victoria, a teenage girl was arrested for stalking, intimidating and making death threats on Facebook to harass another teenage girl. The teen was arrested because she continued to stalk the victim online despite various restraining orders being in place. The teen posted on Facebook: “I’m going to kill her. F–k the restraining order, she’s dead”. This online death threat was ‘self-incriminating’ because it was evidence of a threat to kill her victim.
- In London, police used Tweets and Facebook photos posted by looters to track them down and lay charges against them. One teenage boy posted a picture on Facebook of himself with a collection of stolen goods. This picture was ‘self-incriminating’ because it strongly suggested that he had stolen the goods from stores during the riots.
Online comments can also get you in trouble at school or at work. For instance, two Sydney students who got into a fight at school and another student who recorded the fight on his mobile were all suspended after the video was posted on YouTube.
Be careful that your online posts aren’t illegal…
Remember, the information you post online might be more than evidence—it might be a crime itself. See our fact sheets on:
Online posts and messages can also break court orders. For example, if an Apprehended Violence Order (AVO) has been taken out against you for harassing another person, you’re not allowed to contact that person—online or offline. If you comment on their profile or tag them in a photo, the same penalties apply as if you talked to them in person.
If you are questioned or arrested by the police in relation to something you’ve posted online, you should get legal advice before you speak to police. If you are under 18, you can call the Legal Aid Youth Hotline on 1800 10 18 10. The Hotline provides legal advice and information to young people under 18, and operates from 9am to midnight on weekdays, with a 24-hour service from Friday at 9am to Sunday at midnight and also on public holidays.
How do police view a private account and are they allowed without your permission?
Any public comments, pictures or videos you post online can be used against you. Even if you use an anonymous user name, this may not protect you. For example, Facebook and Twitter have privacy rules that say that the personal information of its users will be given in response to legal complaints where the information is required to meet any law enforcement request.
Did you know that even if you’re careful about your privacy settings, police and others may be able to gain access to the information you post?
Police and other adults can make up fake profiles and add young people as friends. This is important to remember when accepting friend requests from people you don't already know.
The police can also apply for a warrant to search your online accounts:
- If the police suspect that you or your friends have committed a crime, they can apply for a warrant to search your social networking accounts for evidence.
- Many websites have policies in place to deal with search warrants. For example, Facebook allows police with search warrants to request information about users, even if they set their profiles to private.
- Under New South Wales law, police can apply for “covert” search warrants, which allows them to search your things without your knowledge – this includes online accounts such as Facebook.
Can schools and employers look at your private accounts without your permission?
Schools and employers can’t apply for search warrants like the police —but that doesn’t mean that they can’t look at what you post. If you use a school or work computer to access your accounts, you have to follow their “acceptable use policy”. This policy will usually give your school or employer the right to monitor your computer use. This means they can see everything you post and all the websites you visit when you’re using a computer at your school or work.
If there is something you don’t want your school or employer to see, don’t use their computers to look at it.
Can police confiscate your mobile, laptop, tablet or hard drive?
The only times police can confiscate your device from you without your permission or a warrant are when:
- They have a reason to believe that the device is stolen;
- They have a reason to believe that you used the device to commit an offence;
- Taking the device will help prevent or control a public disorder (like a riot); or
You don’t have to hand your device over to the police simply because they ask for it. It’s up to them to show you they have a reason to believe based on some factual reason that the device is stolen or is being used to commit an offence.
How can you protect yourself online?
Did you know that even if you delete your online account, your information may still be found online?
Even if you deactivate your Facebook account, this does not mean that all your information will automatically disappear. Your pictures, posts and comments can still be available on archived or old versions of websites, or in the comments you’ve made on other people’s pages.
Even if you delete a post or picture from your social media site, it still can be retrieved. Removed and deleted information on Facebook may be stored in backup copies for up to 90 days. Keep in mind that people can also save any public photos you post online onto their personal computers and devices.
Here are some tips to help protect you when using social media sites:
- Think before you post – expect that people other than your friends can see the information you post online. Remember that anything you post on a social media site may be used as evidence against you.
- Be wary of strangers – be careful who you add and accept as friends.
- Keep things private – check and update your privacy settings so your account can only be viewed by your friends. Don’t use work or school computers for personal use if you want to keep your internet history private.
- Make sure you are logged out – anyone who discovers an unattended computer or mobile needs only a few seconds to post inappropriate and potentially incriminating status updates or comments.
- Remember that your fake identity or anonymous user name may be found out.
Want more information?
For FREE legal advice and information you can send a Lawmail.
This information was last reviewed in October 2013. This factsheet provides information about the law in NSW. It does not provide legal advice. If you need advice please send us a Lawmail.
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