VIC 'Publishing on the Internet' - Breach of Intervention Order?

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sammy01

Well-Known Member
27 September 2015
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Did I ever mention 'common sense'. I'm sure I did waaaay back when this thread first started.

Comminucation between solicitor and client via email is going to be about the client. And if old mate had a solicitor and emailed the solicitor but the ex managed to intercept that email, well his solicitor would go on the war path. Between you and me, I reckon o'l mate showed the ex's solicitor the same attitude he showed me when the fact is the info I provided him was good.

I reckon it is ok to email about general stuff.... So a question on a law forum about the definition of 'publish' is generic. Asking whether or not a court order should be interpreted this way or that - generic. Posting photo's of a child that is protected under an Avo on a facebook page is a breach. Again, not moralising (hmm-where was that mentioned before?) Again, just a punter giving his perspective of the meaning and intent of the law. And again, my opinion is this stuff is madness. I do not agree with the law. But I think my interpretation is a correct interpretation of the rules... What bugs me about o'l mate though is that in 70% of cases according to the research paper I found, the cops take no further action. This leads me to two hypotheses.

1. Vic police are that corrupt that some of the punters that work there and are mates with this guy's ex are prepared to risk their jobs in pursuit of old mate.
2. There is more to his story than he is telling us.

Glass half full nailed it - if he emailed the solicitor then that is gonna be a breach of the whole 3rd party part of the avo. Given o'l mate recognises the email was about his belief that the ex was abusing the kids. O'l mate, if that is the case, don't email her solicitor. Call Doc's. But it does appear that in NSW there is also a breach simply because he didn't use a solicitor to contact the ex's solicitor.

Hey Scruff.. thanks for the links - Mate, one of my other hobbies is to take my ute and shovel and steal blue metal pebbles that council dump there. Every shovel equals 6 mths and $550. I'd be in jail for the term of my natural life.
 

Scruff

Well-Known Member
25 July 2018
902
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2,389
NSW
Haha. Always fun to read your posts Sammy. Reading a bunch of them together is sometimes akin to watching a Three Stooges movie. :eek::mad::confused:

My very literal explanation would be fine in a perfect world where there's no ambiguity in legislation, but unfortunately we don't live in that world - and I doubt we ever will. So while a black and white approach to interpretation is always the correct starting point, common sense still needs to be applied to resolve any ambiguity. It seems that with the story we've seen here, someone missed the boat in a big way in that department.

I have no opinion regarding who, because as you pointed out, we are never privy to all the details on here. But from what I've read, it sure seems that someone dropped the ball in a big way. I will say though, if someone got into my email and did what has been claimed here, especially a cop, then I would definately be acting on it.

In regard to your gravel rash.... oops, sorry, I mean gravel "problem", I'll share the wisdom of one of my favorite sayings of old...

:cool: "If you can't be good - don't get caught." :cool:

Actually, I got bored the other day, so if you're looking for a real giggle, click over to my profile and hit up the information tab! ;)
 

ruckusman

Active Member
4 March 2020
11
1
34
OK - first post here, but this is because I know someone confronted directly with the exact same vexatious abuse of the Victorian IVO system.

I'm not a lawyer, but I am all over the language and some sloppy language skills which are causing all sorts of issues.

There's a few fatal misunderstanding and misinterpretations that are leading to a quagmire.

The misinterpretation(s) of this line specifically are leading to all sorts of problems:
publish on the internet, by email or other electronic communication any material about the protected person(s)".

Some have misread this to mean:
1\ email is inherently published - demonstrably untrue. An email between private recipients is no more published that a letter sent by the tradition means of normal post is published.
2\ many have incorrectly conflated ON with BY - the word by is used interchangeably with the word via depending on the date when the original IVO application was sought.

Go to a common law concept of publication and specifically "public display" - I can say with absolute certainty that NONE of the forum members or any of the general public is privy to the content of any single private email or normal letter that I have ever sent, UNLESS they were/are the intended private recipients of that correspondence, or received it from one of those intended recipients.
IF a recipient publishes that correspondence ON the internet, you may have a case of acting via a third party - that would have to be proved.

Conflating "on the internet" with "by or via the internet", which in this case is the transmission medium is as misguided as claiming that I am publishing, about someone which I may be prohibited from doing, by writing their names on a piece of paper, putting it in a envelope and posting it to "God c/o Heaven" or anyone else that I might care to send it to, as long as it doesn't end up being published in a form which is available for PUBLIC DISPLAY.

Now compare, I write a letter/email and post or email it to the editor of a newspaper about the protected person - that's an intent to publish, however it is not published until such time as it is printed in the newspaper. If it ends up in the editors waste basket, never printed in the newspaper or read out on the radio or on TV, it's never published and no-one with any common sense whatsoever would attempt to make such a claim.
Sending an email, SMS or visiting a web page to effect that same outcome of publish for public display, whichever form that may take, isn't publication until such time as the content of the communication is on public display.

How the Victorian coppers, yes among some of them it's a very low intelligence bar indeed, cannot distinguish that private email correspondence sent BY or VIA (I have seen both words used in IVO's) the internet isn't published, they like to engage in reductio ad absurdum to take that any single mention of the protected person in private correspondence with other persons as being the equivalent of publication.

How that made it past the coppers in the first place is perhaps not so surprising, HOWEVER, how that gets past a prosecutor and perhaps a magistrate as a technical breach is both appalling and astonishing.

I've seen video of a police interview where they made that specific accusation eight consecutive times about publication - this is Year 10 English comprehension about the definition of publish and the inability to distinguish between something sent BY the internet as a transmission medium as distinct from something available to the general public ON the internet - facepalm!!

The IVO's don't state "can never mention the protected persons name in any private correspondence whatsoever", but somehow that fallacious interpretation has become the norm, both with the police and some here.

Which brings me neatly to; can I publish via email on the internet - well it's a resounding YES!
There are tens of thousands of email lists related to virtually any conceivable topic or subject matter, they have been around since almost the invention of the internet, when transmission speeds were slow and email neatly accommodated the slow data rates.
They pre-date forums like this, they pre-date websites and they definitely pre-date social media. They come from an era where it was almost all text, graphics were expensive and out of reach for many and M$ Windows wasn't even in it's infancy, some would argue that it still is, but I digress...

For the email lists, also used to be known as newsgroups; After joining, if necessary, one can send an email to a list, which will have any number of recipients AND that email is on PUBLIC DISPLAY ON THE INTERNET to anyone in the world, available by going to the specific web page.

Further, it needs to be noted here that the definition ALSO INCLUDES by other electronic communication.
There are a multitude of forum reading applications, indeed Twitter had until a few years ago a 160 character limit, BECAUSE it used, at the time, SMS and MMS as a means to publish on Twitter.

Note, I specified publish on Twitter BY/VIA other electronic means.
I can publish on virtually any website which has comments, discussion, remarks or any other form of feedback by visiting the relevant website/page and typing away, just as I am here.

Twitter is just one example, there are a multitude of other ways and means to publish all over the internet via SMS or Apps on phones & tablets also, which qualifies as other electronic communication.

To the OP's other issue, communicating with the protected person's lawyer directly isn't a breach, UNLESS the IVO specifies that the respondents lawyer must communicate with the protected person's lawyer - this is an optional condition, I've both seen it specified and I've seen it omitted. In the case where it was omitted the IVO did specify that the respondent could communicate with the applicants through A LAWYER. Further into the court orders on the second page it stipulated that the respondent was to supply the response to the better details and particulars to the applicants lawyer by a certain date - they tried to argue initially that any correspondence by the respondent to the applicants lawyer was a breach - I corrected them appropriately on that point, because the first page of the interim order only stipulated a lawyer/solicitor, whereas the second page specified the applicants lawyer - the identity of "a lawyer" was now a known identity.

Note the general article "A" , not the specific article "the respondents lawyer" - it's not a breach technical or otherwise to communicate directly with the applicant's lawyer, which is almost always necessary in family law cases, unless it is specifically stated that the applicant and respondent must only communicate through their respective lawyers - this provision may or may not be included.

As far as gaining access to the OP's emails by impersonating him and unlawfully accessing his emails - that's a flat out crime and needs to be prosecuted.
The communication about her is not communication to her, nor is it published on the internet - that was a serious mistake on her part if true.

The possibility of the OP's ex partner being identified by the fact that she's in the Victorian Police - nonsense - I see nothing is his posts giving evidence as to his identity and by extension any possibility whatsoever of identifying his ex partner by virtuee of being in the Police Force. That's a group of people in the tens of thousands.

Lastly, putting photos onto any online storage medium which is password protected, isn't published, specifically because any member of the general public that does not possess the appropriate login credentials cannot see it, it is by both definition and effect private, given that she thinks that circumventing privacy to make allegations of breaches just requires some sensible application of definitions private and public, by definition are antonyms, if she's prepared to breach privacy restriction(s) to make allegations of breaches she need help.

I've got content online, private content, password protected, it's not published! - Now if someone breaches that privacy, breaks the law by either breaching security, impersonation by using their login credentials, or otherwise circumventing that security designed to protect privacy, they deserve to be prosecuted, because they've committed a crime.

Posting photos of the children to a private facebook group if they are not on the list of applicants to the IVO isn't a breach, BUT mentioning the Ex in any negative way shape or form in the process, going to potentially go for that as a technical breach I'm afraid, but if it's not derogatory or committing family violence in the process I believe a Magistrate should throw it out if it even gets that far, because it a vexatious allegation to be making in the first place.

There's some really poor language skills that have given rise to demonstrably false interpretations, these seem to have been accepted at face value and a ridiculous circumstance has been allowed to perpetuate as a result.
 

GlassHalfFull

Well-Known Member
28 August 2018
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Wow. You've clearly gone far deeper down the rabbit hole than I have. Ultimately the people who put together the wording for the IVO messed it up pretty badly. You know what else I noticed today? A final IVO has the following wording: "This intervention order expires at midnight on xx/xx/20xx, unless extended or varied prior to that time".

But guess what? After being left unsure about how to interpret that, I googled and have now realised that there's actually no universally agreed definition of midnight. Is it the very end of a day - the moment prior to the beginning of a new day, or is it the first moment at the start of a new day? My understanding is that midnight is 12:00am, and being am, is the morning and therefore the first moment of the day, but apparently it isn't always interpreted that way. So how am I to interpret my order? Does it expire at the END of a given day, or the START of that same day? Enquiring minds need to know.

What if you were charged and convicted of a breach of the order on the day you thought it had expired, all because a police officer (and then, a magistrate) interpreted midnight differently? It's ridiculous how many vagaries are left in these orders. And yet there are criminal penalties for breaching them, even if inadvertently.
 

ruckusman

Active Member
4 March 2020
11
1
34
Agree it's atrocisouly sloppy language, but it's been exacerbated by equally atrocious comprehension and language skills, and also clearly been allowed to perpetuate for far too long.

I once had an argument with someone at the NSW RTA, won't go into details, however officer arrived, all was calm and when I explained he candidly said they get the lowest intelligence applicants at the RTA and suggested I mention his name to the mamager at another office to get things done.
Well I've seen some Victorian police in action and they clearly failed in their applications at the RTA or Victorian equivalent, Vicroads. No actual slur on the people at VicRoads as I've had some recent dealings with people there that were very switched on and incredibly helpful, but you get the analogy.

One interview I was present in and another that I watched the entire recording of, I was sitting there thinking these people are so stupid, and they have firearms.

The Police had even taken as legitimate complaints emails sent to other private parties in the first instance and then the ones conducting the interview repeated again and again and again publish on the internet via email - facepalm!!

The system is so abused for vexatious purposes it's completely lost sight of it's original intention which is to protect people's safety, and the lack of intelligence of the Police just perpetuates this
 

ruckusman

Active Member
4 March 2020
11
1
34
Wow. You've clearly gone far deeper down the rabbit hole than I have. Ultimately the people who put together the wording for the IVO messed it up pretty badly. You know what else I noticed today? A final IVO has the following wording: "This intervention order expires at midnight on xx/xx/20xx, unless extended or varied prior to that time".

But guess what? After being left unsure about how to interpret that, I googled and have now realised that there's actually no universally agreed definition of midnight. Is it the very end of a day - the moment prior to the beginning of a new day, or is it the first moment at the start of a new day? My understanding is that midnight is 12:00am, and being am, is the morning and therefore the first moment of the day, but apparently it isn't always interpreted that way. So how am I to interpret my order? Does it expire at the END of a given day, or the START of that same day? Enquiring minds need to know.

What if you were charged and convicted of a breach of the order on the day you thought it had expired, all because a police officer (and then, a magistrate) interpreted midnight differently? It's ridiculous how many vagaries are left in these orders. And yet there are criminal penalties for breaching them, even if inadvertently.

BTW I'd go for 11:59:59 PM as midnight on the date of expiration, because as you've noted 12:00 AM is the next day
 

GlassHalfFull

Well-Known Member
28 August 2018
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BTW I'd go for 11:59:59 PM as midnight on the date of expiration, because as you've noted 12:00 AM is the next day
Right, but technically 11:59:59pm isn't midnight. It's just before midnight. But 12:00am is not technically the NEXT day, it's the very same day, only 23 hours, 59 minutes and 59 seconds EARLIER in the wee hours of the morning. The difference of that one extra second effectively winds back the clock almost 24 hours.

If my IVO expires at exactly 12:00am as I believe the order SHOULD be interpreted as, that would mean that by the time I wake up in the morning on the date my IVO expires, it should be already expired by then. Regardless, best to just wait an extra day before doing anything too bold. ;)
 

ruckusman

Active Member
4 March 2020
11
1
34
Hmm, if I want to split hairs, 12:00:00 is technically that transition point between two days, simultaneously neither and both.
Another example, vehicle registration lists an expiry date, I regard the registration as valid for that day, expiring at 12:00:00, so I wouldn't regard the IVO as having expired at 12:00:00 on the date of the day before from 11:59:59 to the click of the clock to 12:00:00.

Consider another example New Years Eve, the bell rings, the ball drops or the fireworks commence - the day that follows is New Years Day, so if yours expired on January 1, New Years Day, that day would have another 24 hours to go from 12:00:00 when the fireworks started until 11:59:59 January 1 in force -> 12:00:00 January 2 expired
 

sammy01

Well-Known Member
27 September 2015
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Did I ever mention 'common sense'? You lot need some. It is inappropriate to suggest waiting an 'extra day before doing anything too bold'.
 
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GlassHalfFull

Well-Known Member
28 August 2018
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It's inappropriate to wait an extra day? You mean I shouldn't wait? Jeez Sammy, we might need common sense but you need a sense of humour. ;)

But since you've got so much common sense, how do you interpret the IVO expiring at midnight on a given date? Is it the moment the clock turns midnight and the day flips from the 4th to the 5th? Or is it the very END of the day the moment it flips from the 5th to the 6th? (assuming the expiry date on the IVO said midnight on the 5th of March 2020). What does your common sense tell you? I'm curious because from my googling, there is no universally agreed answer to that question, you'd think with that kind of ambiguity, the people who came up with the wording should be shot (if only they didn't take our firearms license away - har har... see, I got a sense of humour!).