Legal liabilities can result when businesses post surveillance images of suspected crimes on social media

Editor’s note: While the following has been fact-checked to the best of our abilities, we are not lawyers nor experts of the law. The following is not intended to serve as legal advice.

Retailers often are seen utilizing social media platforms to post surveillance footage of suspected shoplifters. While recording surveillance in public areas of a private business is generally lawful under state and federal law, broadcasting that footage alongside accusations of criminal behavior exposes business owners to civil and statutory legal liabilities.

For Washington businesses, the practice of online “naming and shaming” triggers multiple legal risks. The primary challenge is defamation. Being found to have falsely accused an individual of theft is categorized as defamation per se, meaning the law presumes immediate and irreparable harm to the individual’s reputation without requiring them to prove actual monetary damages.

In a civil trial, the burden of proving that a theft actually occurred rests entirely on the business. If the state fails to secure a criminal conviction against the accused, or if the accused proves they lacked the subjective intent to steal, the business can find itself vulnerable to a defamation lawsuit. Using phrasing alongside the images or videos such as “wanted for questioning regarding missing merchandise” does not shield a business from liability if it can be argued a reasonable social media user would infer that the individual is being accused of theft.

Posting surveillance footage also exposes a business to invasion of privacy torts, specifically the tort of placing a person in a “false light.” A false light claim can arise if a business posts selective, cropped, or unedited surveillance footage that misleadingly portrays an innocent customer as a thief.

The legal vulnerabilities escalate if the suspected shoplifter is a juvenile. The justice system places stringent bans on the dissemination of juvenile identities to shield children from the lifelong stigma of a criminal record. Private retailers who bypass the justice system to permanently shame a minor online face civil exposure, as minors lack the legal capacity to consent to the public exploitation of their likeness.

Additionally, business owners bear the entirety of the legal risk due to the protections granted to tech companies. Under Section 230 of the Communications Decency Act, interactive computer services and social media platforms enjoy near-absolute immunity from liability for tortious or defamatory content published by third parties.

Given the risks described, businesses are advised to surrender surveillance images of suspected shoplifters directly to their local police department rather than publishing those images on social media platforms. They can then determine if and when to publicize the footage.

The recommendation stems from the distinct legal differences between private commercial entities and government agencies. Law enforcement organizations operate under qualified privileges and statutory immunities that private businesses do not possess. When police departments decide to release images of suspects to the public to aid an investigation, they are largely shielded by these legal immunities.

By routing security images through local police, bypassing online posting, businesses can pursue justice and recovery of stolen property without assuming the potential financial risks associated with an online defamation lawsuit.