Beyond Likes and Comments: When Social Media Activity Becomes a Crime in Australia

Key Takeaways

• Not a Lawless Space: Social media is not an unregulated space. Australian criminal law applies online just as it does in the physical world.

• The "Carriage Service" Offence: The most powerful legal tool is the Commonwealth offence of "using a carriage service to menace, harass or cause offence," which covers most harmful online communications.

• Crime vs. Defamation: Spreading lies that harm a reputation is a civil matter (defamation). Harassment, threats, and non-consensual sharing of intimate images are criminal offences because they threaten public safety and order.

• Serious Consequences: Convictions for social media crimes can lead to a criminal record, substantial fines, and even imprisonment.

Introduction

In our ongoing series on Australian criminal law, we've explored everything from Violent Crime to complex White-Collar Crime. Today, we address a modern frontier where many people feel the rules are different: social media.

It’s easy to view online platforms as casual spaces for unfiltered opinions. However, there is a dangerous misconception that what you type behind a screen is somehow less "real" or carries less weight than words spoken aloud. This is fundamentally wrong. A threat made on Facebook can be as illegal as one made on the street, and sharing a private image can have devastating and criminal consequences.

This guide explains how and why certain online behaviours cross the line from poor taste into serious criminal offences in Australia.

Important Note: The laws governing online conduct are a mix of Commonwealth (federal) and State/Territory legislation. This article provides a general overview, using federal law and examples from NSW as a guide. Always seek legal advice for your specific situation.

Learn more about federal laws governing online conduct at Commonwealth Criminal Code Act 1995.

This is a critical distinction. Many people confuse criminal harassment with defamation, but they are fundamentally different legal issues.

In short, defamation is about protecting a private right (reputation), while criminal law is about protecting public safety and order. That is why threats and severe harassment are considered crimes against the state.

The most frequently used law to prosecute social media crime in Australia is Section 474.17 of the Commonwealth Criminal Code Act 1995.

This makes it a crime to use a "carriage service" in a way that a reasonable person would regard as menacing, harassing, or offensive.

• What is a Carriage Service? This is a very broad term that covers the internet, social media platforms (Facebook, Instagram, X, TikTok), email, text messages, and telephone calls.

• The Objective Test: The key is not whether the victim felt harassed, but whether a "reasonable person" would consider the content to be so. This prevents trivial complaints while capturing genuinely harmful behaviour.

Cyberbullying and Criminal Harassment

While not all online bullying is a crime, it crosses the line when it becomes a course of conduct that is intense, sustained, and intended to cause fear or serious distress. This behaviour can be charged under the "using a carriage service" offence. It may also constitute criminal stalking under state laws, which, as we covered in our guide on Violent Crime, involves a pattern of intimidating behaviour.

Image-Based Abuse (e.g., 'Revenge Porn')

It is a serious criminal offence to share, or threaten to share, an intimate image or video of another person without their consent. This is often called "revenge porn," but the motive doesn't matter—the lack of consent is the crime.

• Australia's eSafety Commissioner: Australia has a unique online safety regulator with the power to order the removal of image-based abuse from websites and social media platforms. This is a crucial first step for victims.

• Internal Link: This offence often intersects with laws concerning Sexual Offences, as it involves a violation of a person's sexual privacy and dignity.

Making Threats Online

A threat to kill or inflict serious harm on someone is a crime, regardless of the medium. A threat posted on social media is treated just as seriously by police as a threat made in person. The ease of sharing online can sometimes make the threat even more terrifying for the victim, as it can be seen by a wide audience.

• The Platform First: For general abuse or harassment, the first step is often to use the platform's own reporting tools (e.g., report the post or block the user on Facebook/Instagram).

• The eSafety Commissioner: For cyberbullying of a child or image-based abuse, the eSafety Commissioner is the specialist body to report to. They have the power to get content taken down.

• The Police: For direct threats, stalking, or serious and sustained harassment, you should report the matter to your local police or the AFP via ReportCyber. Save all evidence, including screenshots of messages, profiles, and URLs.

The speed and perceived anonymity of social media can lead people to act in ways they never would in person. However, the law is clear: the internet is not a lawless space, and your digital actions have real-world consequences.

A keyboard is not a shield from criminal responsibility. The same principles of respect, safety, and accountability that govern our physical society apply with full force online. Before you post, comment, or share, it is essential to think about the impact—and the potential legal consequences.

AHL Legal: Your Partner in Navigating Online Legal Challenges

Facing legal issues due to social media activity? At AHL Legal, we specialize in defending your rights, providing expert guidance and robust legal representation to protect your future.

Learn more about online safety and reporting at eSafety Commissioner.