It all started as a harmless joke on a Facebook trading group.
‘BABY FOR SALE – $7,500,’ the heading read.
“My new girlfriend is a single mum and she doesn’t want to be one anymore and she wants to sell her baby. Couple months old. Near new. Pick up Penrith Plaza Apple Store – you can hold it and then walk out.”
But for local man Adam Tuzynski, his innocent joke soon turned into a nightmare, with Facebook users posting angry comments and threatening to report it to police.
The ad was eventually removed by the group’s admin, and Penrith police were called in to investigate the matter. It is unknown whether charges have been laid, but police were reportedly considering charging the man with ‘using a carriage service to menace, harass or cause offence.’
Mr Tuzynski had been called in to speak with police about the matter, but declined an interview at the last minute after receiving legal advice.
What Does The Law Say?
‘Use carriage service to menace, harass or cause offence’ is an offence under section 474.17 of the Commonwealth Criminal Code.
‘Carriage service’ is defined by the Criminal Code as having “the same meaning as in the Telecommunications Act 1997“. That Act defines ‘carriage service’ as a “means a service for carrying communications by means of guided and/or unguided electromagnetic energy”. This is a broad definition that includes both analog and digital communications over cabled and cellular (mobile) telephones, and communications by way of the internet.
A person is guilty of the offence if they use a carriage service in a way that a reasonable person would regard as menacing, harassing or offensive. The maximum penalty is 3 years imprisonment.
In Mr Tuzynki’s case, it is likely that police would rely upon “offensive[ness]” to support any charge against him.
In determining offensiveness, the court must consider the standards of morality, decency and propriety accepted by reasonable adults. It must also look at any literary, artistic or educational merit that the material may have, as well as its general character, including whether it has any medical, legal or scientific purpose.
If charged, it is possible that the prosecution could seek to rely upon negative comments from members of the public, many of whom were outraged at the contents of the post.
Mr Tuzynski may, however, find comfort in the fact that most people who are charged with the offence are alleged to have committed acts of a far more sinister nature.
One case involved an autistic Brisbane man who posted child pornography and offensive messages on a Facebook page set up as a tribute to a young girl and boy killed in tragic circumstances. That man was sentenced to three years imprisonment, with a non-parole period of 12 months.
In another case, a Townsville man was convicted and placed on a 12 month good behaviour bond after he sent sexually explicit messages to two minors ‘as a joke.’
And in June this year, 20-year-old Ryan Hawkins made the poor decision of sending a series of harassing comments to Clementine Ford, a journalist and feminist who went viral on social media after posing a photo of herself topless with the slogan ‘Hey #Sunrise Get F***ed.’ The bold move was a protest against a post on the Channel Seven Sunrise page which suggested that women who send nude photos are to blame if those images later end up on an overseas website.
Mr Hawkins reportedly messaged Ms Ford threatening to sexually and physically assault her, and calling her ‘lesbian scum.’ After sharing his message, Ford found himself the target of abuse from members of the public who found his message offensive.
He initially denied any wrongdoing, claiming that his Facebook had been hacked. But he later took responsibility and apologised to Ms Ford, saying he was ‘trying to be a smart arse.’
Police are considering charging Mr Hawkins with ‘using a carriage service to menace, harass or cause offence.’