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Self Incrimination and Social Media

Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (March 2016), but may change without notice.

 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of Legal Aid NSW and the National Children’s and Youth Legal Centre in allowing the Legal Services Commission of South Australia to use and adapt existing content.

 

In this section you will find information on:

  • What is self-incrimination?
  • The police and your social media accounts
  • Schools and employers and your social media accounts
  • Protecting yourself online
     

What is self-incrimination?

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 people you know. Sometimes you might not even realise that what you are talking about is a crime.

What does this have to do with social media?

It is becoming more common for people to post information on Facebook, Twitter, Instagram, and other social networking sites that links them to crimes without realising that this can be used against them. Often, they don’t realise that online information can be used as evidence of offline crimes. Here are some recent examples that made the news:

  1. Two Australian teenage girls were arrested and charged after posting videos of their punch-ups on YouTube.
  2. In London, police used Tweets and Facebook photos posted by looters to track them down and lay charges against them.
  3. In San Diego, police found and arrested teenagers suspected of tagging after finding Facebook profiles they had created with their tagging nicknames.

Online comments can also get you in trouble at school or at work. Through Facebook, some people have been caught out lying about being at work or school. Some people have lost their jobs by calling in sick but posting pictures of them travelling or partying online on the same day.
 

The Police and your social media accounts

How can the police view my private accounts?

Even if you are careful about your privacy settings, police and others may be able to gain access to the information you post.

People can make up fake profiles and add you or your friends and see things that way. This is important to remember when accepting friend requests from people you don’t already know.

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.

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 South Australian law, police can apply for a warrant to search your device for evidence of a crime.

Can police confiscate my mobile, laptop, tablet or hard drive?

The only times police can take your mobile or device from you without your permission or a warrant are when:

  • They have reason to believe that the device is stolen; or
  • They have reason to believe your device may contain evidence of a serious offence.

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.

If a serious crime has been committed, police may be able to apply for warrants to search all of the communications sent to and from a computer or other device.

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 that the device is stolen or is being used to commit a crime. However, if the police arrest you or charge you with an offence they will have the power to seize your computer or phone.

 

Schools, employers and your social media accounts

Can schools, employers and others view my private accounts?

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. So, you should always read the policy - and if there is something you don’t want your school or employer to see, don’t use their computers to look at it.

 

Protecting 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. Keep in mind that people can also save photos, or take screenshots of things 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 discovered.
     
  • Be wary of posting your address or date of birth online because hackers may use this information to commit fraud.