Cyberbullying - Crime - Australia

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KEY TAKEAWAYS

Cyberbullying is illegal in Australia and carries maximum
penalties ranging from 5 years to 10 years imprisonment.
Cyberbullying is defined as any conduct through the use of social
media, text, email or phone call from any electronic
telecommunication device that causes a person to be intimidated,
harassed, or threatens a person’s safety or causes a reasonable
apprehension of violence.

Cyberbullying takes many forms and may occur via electronic
means such as texting, calling, messaging, or posting on social
media platforms on devices such as phones, computers, or tablets.
Other forms of cyberbullying may include sextortion which has now
been criminalised under the new
sextortion laws and
revenge porn laws.

WHAT IS CYBERBULLYING?

Cyberbullying is conduct that amounts to intimidation,
harassment, stalking or conduct that threatens to cause fear for
safety or causes a reasonable apprehension of violence to another
person by the use of telecommunication devices such as the internet
via text, email, phone call, or social media. There is no specific
law criminalising cyberbullying in Australia, however, the existing
laws have been amended to be able to criminalise and prosecute
cyberbullying in Australia via the Crimes (Domestic and
Personal Violence) Act 2007 (NSW), Commonwealth Criminal
Code (1995), and Crimes Act 1900 (NSW).

What Does Cyberbullying look like?

It can include name calling, the spreading of false rumours,
sending explicit or violent images or messages, as well as repeated
unwanted messages or threats. It may also include where images or
videos are posted to embarrass or humiliate another, or where
another’s account is utilised to send fake posts.

This can also extend to the sharing of such harmful, false, or
mean content about someone else that someone else has posted.

CASES OF CYBERBULLYING AND STATISTICS

The Crimes (Domestic and Personal Violence) Act 2007
(NSW) was amended following the tragic cyberbullying case of Amy
‘Dolly’ Everett who, at aged only 14 years, died by suicide
following sustained cyberbullying in 2018 by her peers after
attending a boarding school. The new cyber bullying legislation
laws were names ‘Dolly’s Law’.

44% of Australian young people report having experienced a
negative online experience in the last 6 months, which includes 15%
who received threats or abuse online, as reported by the eSafety
Commissioner.

Snapchat is the primary platform used by cyberbullies in
Australia, which is unique compared to other countries where
Facebook has the highest rate of reported cyberbullying
activity.

Worldwide more than one in three children say that they have
deleted an account to avoid bullying.

Promisingly, McAfee has found in a recent report that Australian
cyberbullying rates have dropped significantly in 2022, from its
prior report which found that Australia had the second highest rate
of online abuse against children in the
world.

What To Do About Cyberbullying

Authorities suggest that where cyberbullying occurs immediate
steps should be taken to block the source of the bullying,

However, it is important to ensure, especially for parents, that
a record is kept of the bullying including by recording times and
dates and taking screenshots.

If the cyberbullying occurs on a social media platform, it is
important to report the person as well as any content if it has
been publicly posted.

Social media accounts should also be regularly reviewed with
respect to privacy settings.

Cyberbullying can be reported to the eSafety Commissioner as
well as the police in Australia.

The eSafety Commissioner has legislative authority to compel
online service providers to remove seriously harmful content within
24 hours of receiving a formal notice.

The Commissioner can also provide support to parents and
children regarding the best course of action in dealing with
cyberbullying.

CYBERBULLYING LAWS AUSTRALIA | IS CYBERBULLYING ILLEGAL?

Furthermore, whilst there is no specific offence of
‘cyberbullying’ in NSW, police may charge perpetrators with
a telecommunications offences under the Commonwealth Criminal
Code 1955 (Cth) or
stalking/intimidation under the Crimes (Domestic and
Personal Violence) Act 2007 (NSW).

An example of cyberbullying can include bullying a person by
publicising or transmitting offensive material over social media or
email. The definition of “intimidation” now includes
cyberbullying under section 7 of the Crimes (Domestic and Personal
Violence) Act 2007 (NSW).

USING CARRIAGE SERVICE TO MENACE, HARASS OR CAUSE OFFENCE

The Commonwealth Criminal Code 1955 (Cth) is a
Commonwealth Act which applies Australia-wide.

The Commonwealth use a carriage service to harass, offend or
menace offence is prescribed by section
474.17, and is a crime to use a carriage service in such a way
that a ‘reasonable person’ would find it harassing,
offensive or menacing, in all the circumstances. The maximum
penalty for an offence of using a carriage service to harass,
offend or menace is 5 years imprisonment.

What is a carriage service? A carriage service
includes services for carrying out communications via ‘guided
or unguided electromagnetic energy’ such as telephone and those
related to the internet such as social media posts or messaging,
and email.

For the prosecution to prove that the material was offensive, it
must show that the material was seriously or significantly
offensive.

Offensive has also been ruled to mean:
‘calculated or likely to arouse significant anger,
significant outrage, disgust, or hatred in the mind of a reasonable
person in all the circumstances’ (Monis v The
Queen [2013] HCA 4).

Alternatively, in order to be ‘menacing’ or
‘harassing’, the prosecution must prove a serious potential
effect on receiver, such as causing apprehension or fear for the
person’s safety.

In illustrating whether such material was offensive, menacing or
harassing, it must be done according to an objective standard of a
reasonable person.

In cases where the cyberbully threatens to kill
or seriously injure a person, section 474.15 may be applicable.

Using a carriage service to make a threat to kill another
person, with intent that the relevant person fears that the threat
will be carried out, carries a maximum penalty of 10 years
imprisonment, prescribed by section 474.15(1).

Using a carriage service to make a threat to cause serious harm
to a person, with intent that the relevant person fears that the
threat will be carried out, a maximum penalty of 7 years
imprisonment is applicable.

It is unnecessary for the prosecution to prove that the person
receiving the threat actually feared that the threat would be
carried out.

STALK/INTIMIDATION OFFENCES

In NSW, the Crimes (Domestic and Personal Violence) Act
2007 (NSW) was amended to cover cyberbullying activities such
as posting threatening or hurtful messages, photos or videos online
or repeatedly sending unwanted messages.

The amendments to the Act were named ‘Dolly’s Law’
after Amy ‘Dolly’ Everett, who died by suicide following
sustained cyberbullying in 2018 by her peers after attending
boarding school.

Tragically, Dolly was only 14 years old at the time of her
death.

Section
13 of the Act criminalises conducts that amounts to stalking or
intimidation to a person where there the person engaging in this
conduct intends to cause fear or physical or mental harm or at
least knows that his or her conduct is likely to cause fear to the
victim.

However, the prosecution is not required to prove that the
person alleged to have been stalked or intimidated actually feared
physical or mental harm.

Section 7 of the Act defines
“intimidation” with respect to cyberbullying
as:

conduct (including cyberbullying) amounting to harassment,

an approach made to the person by any means (including via
phone, text messaging, e-mailing and other technologically assisted
means) that causes the person to fear for their safety, or

any conduct that causes a reasonable apprehension of injury to
a person or to a person with whom they have a domestic
relationship, or of violence or damage to any person or
property.

Furthermore, stalking is defined to include
contacting or otherwise approaching a person using the internet or
any other technologically assisted means, as per section 8 of the
Act. The maximum penalty for stalking or intimidation is 5 years
imprisonment and/or a $5,500 fine. This includes a criminal
record.

COUNSELLING OR INCITING SUICIDE OFFENCE

Serious cases of cyberbullying may constitute a contravention of
section
31C(2) of the Crimes Act 1900 (NSW) which criminalises
inciting or counselling another person to commit suicide where the
other person commits, or attempts to commit, suicide as a
consequence. This offence of inciting or counselling another person
to commit suicide carries up to 5 years imprisonment.