Shopkeepers unwilling to confront thieves despite huge cost to business

Shoplifting, theft, robbery and vandalism cost Australian businesses up to $9 billion a year, but the National Retail Association says only 20 per cent of thefts are reported to police.

That is largely because confronting thieves pocketing goods in your store could lead to confrontation, and managers don't want to endanger their staff. Police can't arrest unless the suspected thief is identified, and few thieves volunteer their name when stopped by store employees.

"Wall of shame" for public shaming of shoplifters

Now some managers are taking justice into their own hands by putting up a "wall of shame" at the store entrance, with photos taken from the shop's CCTV of people the store says could be shoplifters.

The notices usually ask if anyone knows who these people are and post a warning that these people are suspected of shoplifting and won't be allowed into the store again.

Some managers are going a step further, posting videos from their store's CCTV on social media of a person they say was spotted shoplifting and asking the public to identify them.

Potential civil claims arising from public shaming

However, managers should be warned that such vigilante action could lead to civil claims against the store.

Unless the person they have publicly portrayed as being a shoplifter or thief has actually committed an offence, then they have the right to the presumption of innocence. Publicly identifying them as a thief could amount to defamation.

Just because the manager has a CCTV image that appears to capture a theft in their store, such as someone stuffing something under their coat, it is a long step under the law to identify them as guilty.

A court generally won't find a person guilty of theft unless it can be established it was an intentional act. The prosecution would need to prove there was a certain amount of intention to steal.

Possible defences to charge of stealing

The accused could argue they intended to pay on the way out, that they were just putting the item in their pocket as they didn't have a bag. They may have a mental health condition. If they are underage, their identity is protected under law.

If there is no conviction, the manager could be faced with civil action by the person who was falsely held up publicly to be a thief.

It is not against the law to post such images or make public appeals for help to identify someone, but managers should have a legal expert check the wording of the notice to avoid a potential claim for damages for defamation.

It would be ironic, and infuriating, if a manager ended up having to pay tens of thousands, even hundreds of thousands of dollars in defamation to someone they believed had been shoplifting, but no charges were laid, or the offence could not be proved in court.

Under the Defamation Act 2005 a person must not publish matter defamatory of another living person if they know the matter to be false, or with intent to cause serious harm to the victim. This includes a noticeboard in a shop and comments on the internet. Courts have awarded large sums in damages to a person's reputation.

A man in Victoria who was held by security staff at Myer who suspected he had shoplifted was awarded $10,000 for false imprisonment (please see Myer Stores Ltd v Soo).

Police advice on handling shoplifting

Businesses should call police about theft or shoplifting and present them with any photo or video evidence.

If a store wants to search bags at the exit, they must post signs at the entrance saying it is a condition of entry. Employees must ask a person to open their bag, but they cannot force them to do so.

You could be charged with assault if staff conduct a bag check without permission. This includes forcing a customer to open their bag, or physically touching a customer. Employees can't touch anything in the bag.

Under law, if you refuse to show what's in your bag, the store can't force you to do so, but it can tell you never to return to the store.

Staff can't detain a shoplifting suspect, as that would be imprisonment. Call the police instead.

Tony Mitchell
Defamation claims
Stacks Law Firm

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.