Is It Legal To Name And Shame Suspected Shoplifters?

Some retail stores have a so-called "Wall of Shame" featuring pictures of people who have been caught on CCTV allegedly stealing inside the shop. "Serves those losers right for stealing," you might have thought to yourself, and internally praised the business owners for taking action against those criminals. But is it legal to display pictures of suspected thieves?

Shoplifter stealing wine image from Shutterstock

We all know stealing is bad, not to mention against the law. But it's one of the most common crimes committed and it happens everywhere, not just in lower socio-economic areas either. A friend who works in a Woolworth's in one of Sydney's richest areas noted that well-dressed individuals who can clearly afford to pay for their groceries are often caught giving themselves five-finger discounts on goods in the store.

It may seem like a business owner's God-given right to name and shame those who have been caught stealing, but here is where you need to factor in the "innocent until proven guilty" rule. And whether somebody is guilty is determined by the courts, not the shopkeeper. By displaying images of alleged (key word here) shoplifters, shop owners are opening themselves up to legal action.

"They run the risk of defaming persons they put on the wall, because if they've not been convicted of any offence then they can hardly be portrayed as thieves," solicitor Tim Abbott told the ABC.

"The courts won't find you guilty of theft unless it was a premeditated or intentional act. There has to be a certain amount of intention involved, and there may be people who've got mental health or other issues that mean they may not have intended to take the article and put it in a bag."

All states and territories in Australia have passed the Defamation Act 2005, which stipulates under section 439:

(1) A person must not publish matter defamatory of another living person (the "victim")— (a) knowing the matter to be false; and (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused.

The maximum penalty for violating these laws is a $33,000 fine and three years' imprisonment. An alleged thief who launches legal action under civil law for defamation may also end up seeking compensation. Oh, the irony.

Defamation laws also apply to social media, so shopkeepers posting images of suspected shoplifters on their Facebook page could also land in legal hot water.

If you are a business owner with a "Wall of Shame", sure, it might be gratifying to stick a person's picture up to hold them accountable to their alleged thievery, but it may end up biting you back in the bum.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


Comments

    What if, like my local beer shop, it's just an untitled noticeboard? There's no wording or legend to indicate the images on the wall are of shoplifters (alleged or actual).

      I agree, if they post pictures caught on CCTV on an untitled board and allow the people looking at the pictures to decide what they are seeing, how can you be in trouble, I mean they could even set up a TV that customers could watch a playback of previously suspect actions - why is that any different to someone watching someone steal something on a live CCTV viewing monitor like they have at the counter in servo's, bottle-o's etc, just because it's delayed/retrieved doesn't make it illegal right? Fact is without a way to vent from the thieves actions the laws need to be improved so the cops will actually investigate and convict petty crimes to stop them trying it again - or if not that maybe ban the people from entering the store - would that be better than being on a wall of shame if you have a flashing red light go off when they enter the shop?? seems stupid that it's out of the shop keepers hands when it's their livelihood in jeopardy, the thief may have a weapon so getting involved for the sake of a $4 product seems stupid.

    So those rules don't apply to:
    1. Border Security
    2. The Force
    3. Etc
    4. Etc
    5. My Kitchen Rules (although the victims are the audience)

      They do, but fly-on-the-wall shows employ a consent process.

      People filmed would be asked to sign a release. If they don't, the footage can't be shown. There are probably plenty of incidents recorded that never make it to air.

      Or they'll pixelate faces and maybe disguise voices if only a minority of those filmed refuse to sign. This especially applies for minors whose identities have to be protected.

        I have occasionally watched those shows before I stopped watching TV completely. The people look like complete idiots. I am sure they are paid. The show possibly even pays their fines.
        This is what happens when you lose on Judge Judy.

    Innocent until proven guilty? Is that a thing in Australia? Our government LOVES punishing before due course in the courts. We're very much a guilty until proven innocent society, and if you were pre punished, it's pretty much tough luck.

    Try having some idiot make up that you did a burnout, the cops confiscate your car for three months, losing your job because public transport just doesn't exist at those odd hours, and then have said idiot come up with a totally different cars details and the cops provide pictures of a burnout mark that couldn't possibly be your car! Fun times.

    Last edited 08/02/16 10:13 pm

      I've heard that one before. The police said my nephew was doing a burnout, and stated as evidence that they saw smoke coming from the back wheels. He was driving a small Front wheel drive Hatchback.

      I got a parking ticket on a stolen car, and every two weeks I took the paperwork to the council, they said they'd delete the ticket and than a week later I got the ticket back again.

        I didn't even have police witnesses in any way. It was a citizen complaint from some jealous arsebag who couldn't even remember which car he was butthurt about on the day, but an instant confiscation with the court date set to after the car release. They also scratched and dented the car in impound.

        The apparent burnout marks were about 6" wide each, and clearly two different single spinners with one going up the road straight, and the other all over the shop. My car at the time had 11" wide tyres and an LSD. Judge yelled at the cops for wasting their time and my time, but that's all the justice I got.

    (1) A person must not publish matter defamatory of another living person (the “victim”)–
    (a) knowing the matter to be false; and
    (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused.

    Emphasis is mine.

    If that 'and' were an 'or', then the shopkeeper may fall foul of clause (b) but if they believe that their publication is true and that their aim is to discourage other thieves from operating in their store, then there is probably no defamation occuring. If they have evidence to suggest that the claim is truthful (ie, CCTV video or stills) then there is definitely no defamation.

    Defences:
    It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
    It is a defence to the publication of defamatory matter if the defendant proves that:

    (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (
    "contextual imputations" ) that are substantially true, and
    (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
    (1) It is a defence to the publication of defamatory matter if the defendant proves that:
    (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and
    (b) the opinion related to a matter of public interest, and
    (c) the opinion is based on proper material.
    (2) It is a defence to the publication of defamatory matter if the defendant proves that:
    (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
    (b) the opinion related to a matter of public interest, and
    (c) the opinion is based on proper material.
    (3) It is a defence to the publication of defamatory matter if the defendant proves that:
    (a) the matter was an expression of opinion of a person (the
    "commentator" ), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and
    (b) the opinion related to a matter of public interest, and
    (c) the opinion is based on proper material.
    (4) A defence established under this section is defeated if, and only if, the plaintiff proves that:
    (a) in the case of a defence under subsection (1)-the opinion was not honestly held by the defendant at the time the defamatory matter was published, or
    (b) in the case of a defence under subsection (2)-the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or
    (c) in the case of a defence under subsection (3)-the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
    (5) For the purposes of this section, an opinion is based on
    "proper material" if it is based on material that:
    (a) is substantially true, or
    (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
    (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
    (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

      So Spandas Lui is just completely wrong?
      I mean, it *looks* like she's just completely wrong.

      In NZ, you just have to express your honest opinion that the person is a shoplifter, and give the reader enough evidence to evaluate your opinion.

      As I understand it, a still frame of the shoplifter being dodgy, with the caption 'shoplifter' is extremely defensible in NZ courts. (And it's what our shops do.)

        Hi there,

        This article is based on the views of a legal expert who is of the opinion that naming and shaming suspected thieves could potentially open shop owners up for defamation lawsuits. Also, this is an Australian-based article dealing with Australian laws. Not sure if any of this applies to NZ.

        Hope this helps.

        Cheers,

        Spandas

          Do we get to know the name of that legal expert, or read an article by them explaining why they believe this?

            Ummm...

            “They run the risk of defaming persons they put on the wall, because if they’ve not been convicted of any offence then they can hardly be portrayed as thieves,” solicitor Tim Abbott told the ABC.

            “The courts won’t find you guilty of theft unless it was a premeditated or intentional act. There has to be a certain amount of intention involved, and there may be people who’ve got mental health or other issues that mean they may not have intended to take the article and put it in a bag.”

              Your chosen quote appears to be rendered irrelevant by another part of your article:

              "A person must not publish matter defamatory of another living person (the “victim”)–
              (a) knowing the matter to be false"

              i.e. It's irrelevant whether they were found not-guilty, if it's an honest opinion it's definitionally not defamation under Australian law.

                Hi bringerofmuffins,

                Thanks for the comments. "An honest opinion" can be used as a defence but the accused can still take you to court for defamation. You would need to then argue that a Wall of shame is an expression of opinion rather than a statement of fact.

                Also, Sydney Criminal Lawyers recommends against naming and shaming suspected shoplifters as well: http://www.sydneycriminallawyers.com.au/blog/defamation-law-naming-and-shaming-suspected-thieves/

                We can deconstruct the law all we want, but if lawyers are advising against it, it's probably wise to hear them out.

                Hope this helps!

                Cheers,

                Spandas

                  Conversely, I think it's wise to refrain from fearing any entity until it is demonstrated to exist.

                  Is there any precedent in which an Australian court found that a wall of shame entry is valid grounds for a determination of guilt of defamation?

    Our old local fish and chip shop used to have a list in the front window of people who owed them money, funnily enough i eventually went to school with the owners son and he denied it ever happened and got quite angry when i laughed about it.

    We only shopped their twice and the first time didn't have the sign, few months later it was closed so maybe they never caught up with the people owing them money,

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