Cyberbullying raised significant legal issues worldwide, especially with the rapid advances in technology eroding our privacy in today’s digital age. Mobile phones, the internet, and social media can be used to harass, bullying, and intimidation. Therefore, it is important to be aware of the serious legal and non-legal implications of cyberbullying. Cyberbullying is illegal in Australia, and laws have been changed, or new legislation passed to combat cyberbullying and cyberbullies can face maximum penalties of imprisonment.
Children and adults are experiencing cyberbullying. Cyberbullying can be hurtful and in some circumstances, it can be a criminal act. The Australian government invested in cyber safety education programmes for children and implemented cyberbullying awareness campaigns across Australia. Cyberbullying laws in Australia are not just protecting children from cyber bullies but also provide legal protection for adults as well.
Cyberbullying can be defined as someone using social media, text, email, or phone calls from any electronic telecommunication device to abuse, intimidate, harass, or threaten another person, their safety or cause them to have reasonable apprehension about the possibility of violence. This behaviour is usually repetitive and is done to hurt, upset, embarrass, or scare another person.
Cyberbullying can include sending or posting humiliating or embarrassing photos or comments about a person. In addition, a cyberbully can spread false rumours or lies, make threats to intimidate, send explicit or violent images or messages, exclude someone online, or use another person’s account to send fake posts. This also includes sharing harmful, false, or mean messages, photos, or personal details about someone with other people.
Cyberbullies sometimes use technology to hide their identity or are known to the victim. They stalk victims online, monitor their online profiles, and cyber-bullying them. Cyberbullies usually make comments online that they will not say to someone when standing face-to-face. These comments on social media can be just as damaging as any other form of bullying, and this type of bullying can cause a lot of stress and trauma for the victim who is cyber-harassed. Cyberbullying can affect people:
People who are bullied can feel upset, embarrassed, hopeless, stupid, or angry. They usually lose interest in things they love; they withdraw into themselves and have low self-esteem. They might lose sleep and experience physical stress symptoms such as headaches, stomach aches, racing heart, or chest pain.
Cyberbullies have power over their victims and can easily send hurtful messages without being seen. In addition, cyberbullies use technology as a tool for harassment and the lack of physical proximity with victims may lead to severe forms of abuse.
The use of mobile phones, email, or social media sites to abuse or harass a person or a group of people can be seen as a criminal offence when a person:
· Use the internet or a device to threaten, harass or offend another person
· Present intimidating or threatening conduct
· Stalk a person
· Incite a person to commit suicide
· Defame another person
· Access online accounts without authorisation
Currently, the law does not specifically criminalise cyberbullying in Australia. However, serious online harassment is a crime under the Commonwealth Criminal Code Act 1995(Cth) and applies across all states and territories.
Criminal Code Act 1995 (Cth)
The Criminal Code Act 1995 (Cth) in Australia prohibits the publication or hosting of abusive online content. The following offences are criminalised in the Criminal Code Act 1995:
· Offenders use a phone or the internet to make a death threat (Section 474.15(1))
· Offenders use a phone or the internet to threaten serious harm (Section 474.15(2))
· Offenders use a phone or the internet to menace, harass or cause offence (Section 474.17)
· Offenders publish or distribute child pornography online (Section 474.19)
· Offenders publish or distribute child abuse material online (Section 474.22)
· Content service providers fail to report offensive and violent material to the police (Section 474.33 and Section 474.34)
Section 474.17 of the Criminal Code Act 1995 (Cth) criminalises the use of a phone or the internet to threaten, harass or cause offence to a person. A message may be offensive if it is likely to cause anger, outrage, humiliation, or disgust. The maximum penalty for such an offence is three years imprisonment and/or a fine of up to $30,000.
The use of phones, text messages, email, or online posts to intentionally threaten to kill someone is criminalised in Section 474.15 of the Criminal Code Act 1995 (Cth). This offence is punishable by a maximum penalty of ten years in prison. The penalty for using a phone, text messages, emails, or online posts to intentionally threaten a person with serious harm under the same section attracts a maximum penalty of seven years imprisonment.
The Online Safety Act 2021 (Cth)
The Online Safety Act 2021 (Cth) came into effect in 2022. The objectives of the Online Safety Act 2021 (Cth) are:
· To protect adults from serious online abuse by creating a means for complaint
· To protect children from cyberbullying by creating mechanisms to capture and deal with this type of content
· To implement rules to facilitate the removal of abusive and harmful content
· To close the gaps in existing state and territory laws against online abuse
The Act gives the eSafety Commissioner the power to gather information to facilitate the identification and prosecution of cyber bullies and enforce the removal of offending content under the threat of fines and injunctions. The maximum penalty for an offence under the Online Safety Act 2021 (Cth) is a fine, according to the Commonwealth penalty unit.
Every state and territory has laws in place that make it a crime to record or share intimate images without consent. Similar offences and penalties for these crimes are enforced in Australia’s different states and territories.
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the Crimes Act 1900 (NSW) have also been amended to criminalise and prosecute cyberbullying in Australia. Although there is no specific offence for cyberbullying, police may charge offenders under the above laws.
The Domestic and Personal Violence Act 2007 (NSW)
The Domestic and Personal Violence Act 2007 (NSW) under Section 13 is used to identify and charge offenders accused of cyberbullying. An offender will be found guilty of an offence under this section if they intend to cause another person to fear physical or mental harm through stalking and intimidation.
It is a criminal offence to stalk or intimidate a person to cause fear of physical or mental harm. Stalking is giving someone continuous unwanted attention by contacting them via phones, social media, or the internet. Using phones, social media, or the internet is prohibited to stalk or intimidate a person. The maximum penalty for this offence is five years imprisonment.
The Crimes Act 1900 (NSW)
The Crimes Act 1900 criminalises the offence to record or distribute, or threatening to distribute intimate images without consent. The following offences are criminalised:
· Recording an intimate image of a person without consent (Section 91P)
· Distributing an intimate image of a person without consent (Section91Q)
· Threatening to record or distribute an intimate image of a person without consent (Section 91R)
These offences each carry a maximum penalty of three years imprisonment.
In serious cases, a person may also be guilty of an offence under section 31C of the Crimes Act 1900 (NSW) if they incite or counsel another person to commit suicide, especially if the person does commit or attempts to commit suicide as a result of the cyberbullying. The offender can face penalties of five years imprisonment if the person does commit suicide or attempts to commit suicide. Offenders may also face liability from the internet or mobile service providers, websites, schools, or other non-penal courts.
Criminal defamation under Section 529 of the Crimes Act 1900 (NSW) is a criminal offence. An offender publishes false information about a person when they know it is false. They do so to cause the other person serious harm. Criminal defamation attracts a maximum penalty of three years in prison.
Civil defamation provides victims with an alternative means to seek compensation for damages to their reputation due to cyberbullying. In addition, a person who has experienced scandal, trauma, or humiliation as a result of cyberbullying has the right to legal action.
It is also a crime under Section 308H of the Crimes Act 1900 (NSW) to access or modify restricted, unauthorised data of another person. This offence attracts a maximum penalty of two years imprisonment. This crime is also penalised under Section 478.1 of the Criminal Code Act 1995 (Cth).
Another type of cyberbullying is revenge porn. A person posts explicit images or videos of a sexual nature of someone else online to shame or expose them. This offence carries a maximum penalty of three years imprisonment and an $11,000 fine.
Prosecutions for cyberbullying are relatively rare in Australia, although the law prohibits the use of phones, social media, or the internet to harass, stalk, intimidate, or threaten another person.
It is important to take immediate steps to stop the source of the bullying and to protect yourself from cyberbullying. These steps can be:
Talk to Someone
It is important to confide in someone because it is important to know that you are not alone. It can be a friend, a parent, a trusted adult, a teacher, a principal, or a trained counsellor. They can assist in the process of taking appropriate action to stop cyberbullying.
Speak to the Offender
A person can ask the offender to delete the inappropriate material, and if they refuse, explain to them that their conduct could constitute a criminal offence.
A person should collect evidence of cyberbullying to take further action. For example, print, screenshot, or save messages or photos.
Report the Cyberbullying
A person can take steps to get cyberbullying material removed or stop the cyberbullying by:
· Reporting it to the social media service, website, or phone company so they can remove the inappropriate content
· Children under 18 years can report cyberbullying to the eSafety Commissioner and lodge an official complaint
The eSafety Commissioner has legislative authority to force online service providers to remove harmful content within 24 hours of receiving a formal notice. The Commissioner also provides support to parents and children and guides victims regarding steps to follow in dealing with cyberbullying.
Seek Legal Advice
Every person’s situation differs, and in serious cyberbullying cases, a person can take legal action against the bully or get an apprehended violence order or AVO. Experienced avo lawyers will be able to advise a victim on the relevant laws and steps to follow if the victim intends to pursue legal action if an offender refuses to delete the hurtful material.
Report Cyberbullying to the Police
A person should contact the police immediately if threatened. It is a good idea to get legal advice before reporting it to the police. Police can track down anonymous cyberbullies online. While there are no specific laws in Australia for cyberbullying, there are existing laws police can use to arrest and charge offenders.
Safeguard Your Online Profile
A person can take steps to stay safe online:
· Keep privacy settings up to date and set to private
· Not replying or responding to cyberbullies
· Immediately unfriend or block cyberbullies on social media, websites, or phone apps.
Refrain from Participating in Cyberbullying
A person should not forward unsubstantiated rumours or humiliating comments of a person, join in a hurtful discussion or share any explicit or embarrassing photos initiated by another person. If a person shares this information, they condone the behaviour of the cyberbully. This information can go viral if shared, and the person who joins in this will be implicated in cyberbullying as an accomplice. It is best to leave any conversations or groups that display bullying behaviour and to not react negatively on any social media platform, website or phone.
Contact Lyons Law Group if you have been accused of cyberbullying. Our experienced criminal lawyers in Parramatta can assist you.