Post and Boast Laws: Another Attack on Freedom of Expression (Again) Part 1

Imagine you are sitting in on a park bench. In your line of sight you see an eccentric man and a clown getting into an argument and sensing something funny will happen. You pull out your phone and start filming. Suddenly the clown pulls a pie out of a bag and slams it into the face of the eccentric man, then walks away. You laugh and send a video of the incident to a friend with the comment “haha lol”.

The video then goes viral in your local community. About a week later, you get a knock at the door. It’s the police. They tell you that you are being a charged with a crime.

“For what? I’m a law-abiding citizen” you ask.

“That footage of the pie incident you posted last week constitutes posting and boasting as you shared footage of what constitutes assault and ‘glorified’ the act with your comment of haha lol”.

You later find out that your friend who shared the video is also being charged under the same legislation.

Posting and boasting laws seek to criminalise footage of acts that break the law and ‘boast’ about law breaking. They are in force some states and are currently being proposed in my state of South Australia.

These laws seek to prevent people from gaining notoriety by posting criminal acts, but instead they threaten to restrict freedom of expression, punish political participation, excessively punish people for minor acts, reduce transparency, and have a broad range of other effects.

Various versions of the legislation criminalise the posting or sharing of footage that shows an act that is illegal and ‘glorifies’ or ‘shows off’ the act. The legislation targets not just those committing the crime but everyone who shares footage of it. This means anyone who shares footage of something that breaks the law and doesn’t explicitly denounce the act could find themselves in trouble.

There are very few exceptions to this law. One is media reporting, although the treatment of mainstream media organisations vs alternative media and citizen journalists will differ. The law is meant to allow the sharing of footage for the sake of being ‘informative’ although this will be subject to government discretion. Other exceptions include campaigns to denounce acts that are currently illegal, and of course government agencies are exempt.

Like many readers on this site, I don’t equate what is legal with what is moral. I believe this legislation punishes people for thoughts and sentiment. Given this, I am deeply concerned that the legislation will result in people being punished for political commentary that doesn’t line up with current government policy when footage of events is attached to that commentary, and that this will have a chilling effect on political commentary.

A good example would be a self-defence situation that has been filmed, given that Australian has poor protection for self-defence, and people are often charged with violence themselves for defending against violent and sexual acts. If someone wishes to post and share the footage of the incident with supportive comments for the person, they could fall foul of this law since they are ‘supporting violence’.

Even if the charges are dropped, an even more unpleasant quirk of the law is that when a person isn’t convicted or charged for the alleged crime in the footage, a conviction for the post can still occur. The legislation allows a conviction even if the acts in the footage are not proven in court to be illegal, yet the government decides you are ‘promoting illegal behaviour’ and the act depicted looks like it might be illegal.

For example, let’s say a car enthusiast was to engage in one of many acts in the expansive definition of hooning on their own of land in the middle of nowhere. And let’s say that South Australian police is convinced that Mr Car Enthusiast was hooning on a public road, or they just don’t like the guy. They may not be able to charge Mr Car Enthusiast with hooning but would still be able to charge him with posting and boasting under such legislation.

What I have discussed in this article this doesn’t even cover all the issues with the legislation. In my second and third part to this series, I will go into greater detail on the various issues and how it will impact those who engage in political protest and civil disobedience.