Scenes of the mob attack on US Congress earlier this week
shocked the world.
Five people have died as a result of Trump supporters breaking
into the US Capitol Building last week disrupting the certification of Joe Biden as the
One woman was fatally shot by police, three others suffered
medical emergencies. A US Capitol police officer is the latest to
be confirmed dead after sustaining injuries during the riot.
Since then both Twitter and Facebook have taken steps to remove
Donald Trump from social media platforms. Facebook has put an
indefinite ban on the former US President’s account and Twitter
has permanently suspended him, accusing him of posting tweets in
the lead up to, and after the mob riots at the US Capitol Building
he had violated the platform’s Civic Integrity policy.
What’s more, Twitter said in a statement: there was a risk
of further incitement of violence, with some tweets “highly
likely to encourage and inspire people to replicate the criminal
It’s understood that Twitter’s decision to remove the
@realDonaldTrump account was precipitated by the fact that more
than 300 Twitter employees signed an internal petition calling for
Trump to be permanently banned following the Capitol riots.
Facebook made a decision along similar lines, banning Donald
Trump until at least Inauguration Day. Facebook CEO Mark Zuckerberg
said this was because risks “are simply too great” to
allow Trump continued access after he used the platform to
“incite violent insurrection against a democratically elected
Trump reacted to Twitter’s ban by claiming “Twitter
employees have coordinated with the Democrats and the Radical Left
in removing my account from their platform, to silence me – and
you, the 75,000,000 great patriots who voted for me.”
The suspension has been a long time coming. For years, Twitter
has faced pressure to remove Donald Trump based on the fact that
the global reach of the platform allowed him to spread often
hateful language and untruths.
Most people have watched the Donald Trump presidency with a
mixture of mocked interest, and discernment. Others at times have
expressed disbelief at the outrageous candidness of his comments,
in light of his position and responsibilities as a global leader.
But, now in hindsight, it’s also possible to see the real and
dangerous impact his regular informal commentary via social media
had on his supporters.
Clearly as his tantrums grew at losing the 2020 election, and
his legal challenges against election fraud amounted to nothing,
his dialogues influenced his supporters to such a degree that they
felt compelled to storm the Capitol Building, vandalising the
interior and injuring whomever got in their way.
The power of social media platforms to sway opinion and fuel
beliefs has been well documented in recent years and while the
companies themselves have deployed measures such as codes of
conduct to protect users, they are, as it turns out relatively
powerless to stop hate speech, bullying and incitement in many
situations, often to coin an old phrase, ‘closing the gate long
after the horse has bolted.’
For its own part, Twitter defended it’s decision to allow
Donald Trump to remain active on it’s platform for many years
before this final ban, arguing that his presence was in the public
Defining what is in the public interest of course, is never
clear cut and the other very important side of the argument is the
protection and perpetuation of freedom of speech, because social
media platforms are used for information-sharing and important
social discussions, including political discussion and debate.
Will Donald Trump face charges?
What will happen next in America is not certain.
It’s been reported in the US that the Whitehouse legal
counsel repeatedly warned Donald Trump to be aware of what he said
on social media. At his counsel’s behest he has issued a
statement which can be seen on YouTube, deploring the violence and the
riot on the Capitol Building.
Will his tweets land him in jail? It’s difficult to know at
this point. Federal prosecutors have vowed to investigate the
Capital riots and as the former President leaves office, he will
lose protection from legal liability that the Oval Office has
afforded him for the past four years.
Offences of Incitement in Australia
Inciting a criminal offence can be a
criminal offence under both Commonwealth law, which applies across
Australia, as well as under laws of states or territories.
Commonwealth law: inciting a crime
Section 11.4 of the Criminal Code Act 1995 (Cth) contains the
general offence of ‘incitement’, which provides that:
‘A person who urges the commission of an offence commits
the offence of incitement.’
The section goes on to states that:
- A person may be found guilty even if committing the offence
incited is impossible,
- Any defences, procedures, limitations or qualifying provisions
that apply to an offence apply also to the offence of incitement in
respect of that offence, and
- Any special liability provisions that apply to an offence apply
also to the offence of incitement in respect of that offence.
This ‘catch-all’-type provision means that a person can
be found guilty of a particular offence under Criminal Code Act -
which applies across Australia – if they encourage another person
to commit that particular offence.
So, for example, if a person encourages another to commit
the offence of intentionally causing serious harm to
an Australian citizen or resident under section 115.3 of
the Act, he or she may be found guilty of that offence – whether or
not the encouragement is due to the person’s beliefs or
The offence is not applicable to attempts or conspiracies, and
the penalties that apply are:
- 10 years in prison for offences punishable by life
- 7 years in prison for offences punishable by 14 years’
imprisonment or more,
- 5 years in prison for offences punishable by at least 10
years’ but less than 14 years’ imprisonment,
- 3 years or the maximum penalty, whichever is less, for offences
otherwise punishable by a term of imprisonment, or
- the maximum applicable fine if the offence is not punishable by
a term of imprisonment.
Commonwealth law: urging violence against members of
In addition to the law against incitement, section 80.2(1) of the Criminal
Code prescribes a maximum penalty of 7 years in prison for
urging violence against members of groups.
The section provides that:
A person (the first person) commits an offence if:
(a) the first person intentionally urges another person,
or a group, to use force or violence against a person (the targeted
(b) the first person does so intending that force or
violence will occur; and
(c) the first person does so because of his or her belief
that the targeted person is a member of a group (the targeted
(d) the targeted group is distinguished by race, religion,
nationality, national or ethnic origin or political opinion;
(e) the use of the force or violence would threaten the
peace, order and good government of the Commonwealth.
Section 80.2(2) prescribes a 5 year maximum penalty where
subsection (d) above is not established.
NSW law: publicly threatening or inciting violence
Publicly threatening or inciting violence is an offence
under section 93Z of the Crimes Act 1900 which
carries a maximum penalty of 3 years in prison.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- You intentionally or recklessly threatened or incited violence
towards another person or group,
- You did so by way of a public act, and
- You did so on grounds of the other person or group’s race,
religious belief or affiliation, sexual orientation, gender
identity, intersex status, or HIV or AIDS status.
A ‘public act’ includes:
- Any form of communication to the public, including speaking,
writing, displaying notices, playing recorded material, and
broadcasting and communicating through social media and other
- Any conduct observable by the public, including actions,
gestures, wearing or displaying clothing, signs, flags, emblems or
- Distributing or disseminating any matter to the public.
The section makes clear that an act may be public even if it
originates or occurs on private land
‘Race’ includes colour, nationality, descent and ethnic,
ethno-religious or national origin and ‘religious belief or
affiliation’ is defined as holding or not holding a religious
belief or view.
‘Sexual orientation’ means a person’s sexual
- Persons of the same sex,
- Persons of a different sex, or
- Persons of the same sex and persons of a different sex.
‘Gender identity’ means the gender related identity,
appearances, mannerisms or other gender related characteristics of
a person without regard to the person’s designated sex at
‘Intersex status’ means the status of having physical,
hormonal or genetic features that are:
- Neither wholly female nor wholly male,
- A combination of female and male, or
- Neither female nor male.
‘Violence’ includes violence towards persons as well as
To establish the offence, the prosecution does not need to prove
- Your views were incorrect or correct, or
- Any person formed a particular state of mind or carried out a
Proceedings for the offence can only be commenced with the
approval of the Director of Public Prosecution.
Defences to the charge include:
- Self defence, including the defence of others,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.