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Podcast with Steven Brown looking at the legal ramifications of naming and shaming shoplifters on social media.

TRANSCRIPT

Intro:

The Mitchell’s front page podcast is brought to you by Geelong Bank. Listen, live on 94.7, the pulse Mondays and Tuesdays from nine to 11

Mitchell:

There has been a recent trend by some shop owners and business owners to name and shame shoplifters on social media. And I think there was a supermarket in Adelaide that was doing this, putting up videos of the people that come in and remove gear from their shops without paying. Is this legal? Are they allowed to do it? And is this the best approach to take when it comes to trying to deal with shoplifters on the line to talk about this is Steven Brown is a commercial lawyer and the principal of Lynn & Brown Lawyers. Steven, thanks for being on the program once again. Thank you, Mitchell. Good morning listeners. So have you seen the video of the shoplifters being named and shamed on social media?

Steven:

I have had a bit of a look at what’s occurring in Adelaide. There’s also some recent incidents of it occurring in the UK, the predates that I’m not sure whether the Adelaide owner that’s where he got his idea from.

Mitchell:

Yeah, and do you think it works? Does it actually deter shoplifters?

Steven:

Well they’re saying that the raw, very raw statistics for the very few circumstances in Adelaide, and I think there’s a couple of stores that have done it are saying their numbers of shoplifting have significantly dropped since they started doing it now.Now, it’s a very small pool and quite anecdotal evidence and the person involved has obviously got a vested interest in telling us that it’s working.

Mitchell:

What does the law say when it comes to CCTV? Because that would usually remain private. It would be recorded and it could be played back by the shop owner or potentially police, but when you go and post that on social media, what are the legal issues?

Steven:

Yeah. So that they have to be very careful with how you use that. So one of the important things is that it has to be clearly shown to the public that the area is under surveillance. So that’s why when you walk through an area that is under say CTV surveillance, if you you’ll usually see some signs to that effect. Yes. and also it’s required to be otherwise in a clearly public forum. So somewhere where you would expect that the public will see you and that you’re open to the public. So one of the, you know, the circumstances where we often see this becomes problematic for shop owners is if there is a clothing retailer, and they’re trying to film around the change room area now, understandably, this is where a lot of their shoplifting occurs because people will take some clothes into the change rooms. And one of them gets tried on and one of them gets slipped into a bag. But that is highly problematic because there’s not an area where patrons would expect to be filmed. And even by signposting that there are significant risks that they take. So it is legal to do it. There’s significant problems though, that are faced with then if you decide to put that out into the public forum on social media.

Mitchell:

Just explain that, how does it change if you decide to post to social media?

Steven:

We, we then started to encounter issues related to defamation law. So the shop owner has to be extremely careful that they have judged the situation correctly. Now, normally we have this process, we call it our judicial system, where someone gets charged with an offense and they go through a process of being able to try to prove that they are not guilty. And then through a very involved process of the judicial system, a decision is made, whether they actually shoplifted or not. What we’re having near here is a shoplifter, making it a shop owner, making a determination very quickly by having a look at some often fairly poor quality video, and then putting it out into the public and naming and shaming someone and saying that they’re guilty of an offense. If they get that wrong, the price could be high on on their bet.

Mitchell:

Have there been any cases where someone who’s been named and shamed on social media has come back and tried to commence defamation proceedings? Surely

Steven:

It would be not that I’m familiar with. We often only hear about the cases where there’s celebrities in play and defamation, and that’s because the stakes are a lot higher and their ability to get a compensation is usually a significantly greater sum, but what bears significant relevance to the shop owners that are doing this is where there is malice involved with defamation. It really ups the ante and takes away a whole lot of defenses that would normally be in play for someone who is accused of defamatory behavior and a thinking they circumstances. It would be quite easy to show malice because the sole purpose of posting this is to try and get back at the person that they’re alleging has shoplifted from them. So it creates a very difficult situation potentially for the shop owner, unless they can definitively prove that a shoplifting offense or some other theft offenses actually occurred.

Mitchell:

I suspect that it would be quite difficult for people to launch defamation action. And I just wonder if someone is in shops taking meat products or whatever, would they have the resources to then go and commence defamation proceedings? That’s why I was curious if there’s been any cases where this has actually happened.

Steven:

Yeah that you’re correct there Michael often that would be the case, but what about let’s pose a situation where someone with some substance behind them is filmed and that the person before them is actually the one that shoplifted the product and they’ve legitimately taken something off the shelf and let it go into the counter and purchased it. But the shop owner is thought that they were the one that shoplifted and posts that on social media. And they’re a person that’s in the public profile and this thing gets they get named and shamed and they never committed the offense. And they have a significant public profile, which would mean that the defamation will possibly have significant ramifications for them.

Mitchell:

I suppose, in that instance, as a business owner, you could be in serious trouble because you’ve tried to name and shame the person over a $2 product potentially and you’re potentially up for hundreds of thousands of dollars if this person had a reasonable reputation beforehand.

Steven:

That’s correct. But we know in Australia that the, yeah, there’s something like $9 billion is being stolen from and offenses committed in retail outlets across Australia. So it, you know, understandably the shop owners are frustrated. We know that only about 20% of them are actually reported to authorities. So there’s a, there’s a massive disparity between the offenses that are occurring and what’s actually being able to be done in relation to it. So understandably the shop owners have got to this position of frustration where they think that the normal course of following the law and reporting it to the police is not having any benefit to them. And so they’re looking for alternative means this may not be their answer though.

Mitchell:

Well, I worked in retail back in the day and it was discouraged of course, taking strong action against shoplifters. And the reason being is I suppose it could lead to more harm than good down the track. If you encourage your staff to go after shoplifters and go through that whole process, you just don’t know how things could turn. Yeah, that’s certainly the other point I just questioned on is the actual offense of shoplifting. Are there any defenses to shoplifting? I mean, you’re talking about if a shop owner label someone as a shoplifter on social media, but if you’ve got the clear evidence that someone’s taken things from your premises and they haven’t paid for it, are there any circumstances under the law where that could actually be legal or be not an offence?

Steven:

I think it would be very difficult to prove that there wasn’t an offense, but remember what happens with the CCTT, the footage, it often only captures part of the story. So very rarely, particularly in the areas where it’s a privately set up system, it doesn’t capture the whole of the store. So we might see someone on CCTV footage putting an item into their bag, but they might not have had something else to carry it with and they might only just put it into their bag and ultimately gone to the counter and actually paid for the product. But your footage of it might look like they’re committing assessed.

Mitchell:

So you would really need the multiple cameras and multiple camera angles to show them, first of all, you know, going to the actual shelf and then going later on to the counter and seeing all the different stages of them walking through the shop

Steven:

And then walking out without having paid. And in that circumstance, they probably have the evidence to support them. But I dare say most small retail outlets. They wouldn’t have that type of coverage from their CCTV.

Mitchell:

And you’ve talked about shoplifting this morning, but there are severe retail crimes other than shoplifting. And I think vandalism is quite a severe problem as well. Isn’t it?

Steven:

Yeah that’s correct. So yeah, products getting vandalized while on the shelves. There’s also, you know, after hours sift that occurs, you know, we often see these Ram raides, so liquor businesses and other businesses that has electronic equipment and that sort of nature of material that’s easy to move. So yes. Yeah. Shoplifting is only one example of the type of offenses the shop owners would be dealing with. Yeah.

Mitchell:

Do you have any suggestions for business owners if they can’t go down the, the name and shame road, do they need to try and go through criminal prosecution and is that likely to be successful?

Steven:

That probably is their only recourse to them. I think having the cameras up is great and, and probably having a lot of signage to say, you know, this area is under surveillance having a regular walk around to the shop and, and that might be just to provide some old-fashioned service for people, but also would probably operate as a deterrent for someone to get fast fingers and try to put something away if there’s someone walking close to them. But I don’t think there are any easy answers because you know, often a lot of these small retail businesses, particularly in the current time of online trading and finding it pretty trust. So their, their, their budget to fund something of this nature is difficult. Come friendly with the local conservatory as well, and get to know them so that when something does occur they might put your matter up to the priority.

Mitchell:

Well, Steven, thanks for being on the program this morning. Really appreciate it. A few good suggestions there, but also a cautionary tale for businesses that are perhaps going down the name and shame path. Thank you very much. Thank you very much. Steven Brown, with us here, a commercial lawyer and principal of Lynn & Brown Lawyers.

Outro:

Mitchell’s front page podcast is brought to you by Geelong Bank. Listen, live on 94.7, the pulse Mondays and Tuesdays from nine to 11 search for Mitchell’s front page on Facebook, Twitter, Instagram, or wherever you get your podcasts.

 

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