Last week’s LAWirl post talked about ‘finfluencers’, but this week we are focusing on so-called ‘crimfluencers’ – people who share material depicting criminal behaviour, typically on social media or messaging platforms. The WA government recently took action to combat this phenomenon by introducing what they have called ‘post and boast’ laws to parliament. ‘Post and boast’ laws aim to criminalise the dissemination of material depicting a crime, where often the purpose of the post is to glorify or brag about the behaviour.

WA’s proposed ‘post and boast’ laws have not yet passed through parliament, but they are based on laws which are already in effect in other Australian jurisdictions, including New South Wales and Queensland. However, the scope of the proposed WA law is broader than in those other jurisdictions. So, if the proposed WA law passes, what will actually constitute ‘dissemination’, and what sort of crimes will people be prohibited from disseminating depictions of?

What is the ‘post and boast’ offence?

This proposed law would make it an offence to disseminate material depicting conduct that constitutes one of the ‘relevant offences’ (more on this below) where a reasonable person would consider that the material, or the dissemination of the material, is likely to:

1. humiliate, intimidate or victimise a victim of the offence;
2. be offensive or demeaning to a person or group of persons; or
3. have been disseminated for the purpose of either:
   • increasing the reputation of a person who engaged in the conduct;
   • boasting of the conduct;
   • glorifying the conduct; or
   • encouraging others to engage in similar conduct.

Whether or not the material is likely to do any of the above is assessed objectively – this means it doesn’t matter what the person’s actual intention or purpose was in disseminating the material. All that matters is whether a reasonable person would think it would likely satisfy any of the above criteria.

What does it mean to ‘disseminate material’ about a crime?

The definition of ‘disseminate’ in the proposed WA law is broader than other jurisdictions with similar laws, and includes even simply making the material available to another person, whether electronically or otherwise. This could theoretically capture things like re-sharing, reposting, or sending a video someone else has posted that depicts a crime. A person might be liable under the law even if they are not the original author, creator, or poster of the content. However, it is important to note that the ‘accident’ defence would likely apply in situations where, for example, a person can show they accidentally pressed the ‘repost’ button on an Instagram post.

What crimes are included?

The material must depict conduct (either an act or omission) that constitutes a ‘relevant offence’. The proposed WA law includes more ‘relevant offences’ than other jurisdictions that have enacted similar legislation. For example, similar laws in the Northern Territory only cover crimes against the person and property offences.

In particular, some have criticised the inclusion of offences like ‘breach of the peace’ in the definition of ‘relevant offence’ in the WA law. The concern is that a breach of the peace may include protests and therefore have a chilling effect on freedom of speech. While the government has said that protests are not the focus of the proposed changes, it is important to remember that there is freedom of political communication in Australia. Freedom of speech is not a right expressly provided by our Constitution, but there is a long history of High Court authority acknowledging a more limited implied freedom of political communication – sometimes referred to in shorthand as the ‘implied freedom’. The new law may infringe on the implied freedom given the breadth of the definition of both ‘disseminate’ and ‘relevant offence’, and as such if it is passed it may be subject to constitutional challenge in the High Court (on the basis that it might go too far beyond what is necessary to achieve the purpose of criminalising social media posts of illegal activity).

Conclusion

The proposed WA ‘post and boast’ law is currently being considered by a parliamentary committee, after which amendments may be made. However, it is likely to pass in some form and become law. If the law is passed, proving that it infringes on the implied freedom would require someone to challenge it in the High Court on the basis that it is unconstitutional.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.