Offences of intimidation or stalking are considered to be treated very seriously by NSW Courts. The Courts have expressed many times that every person is entitled to feel safe.
There has been a significant rise in victims being threatened and harassed online through social media. The impact of this can be psychologically damaging which can end with tragic consequences.
Technology enables people to harass other people twenty four seven from computers and smart phones, says Mick Fuller, Police Commissioner.
Until recently, the laws were not really up-to-speed with today’s advances in technology which these days allows people to communicate with one another through social media and online activities instantaneously. This has resulted in cyber bullying and online trolling which has had devastating consequences on victims.
We only need to look at earlier this year when 14 year-old Amy “Dolly” Everett took her own life after she was the victim of relentless online bullying.
The internet has been around since the 80’s. In fact, up to 70% of primary aged children use social media says Dr. Michael Carr-Gregg, a youth mental health expert.
Up to 98% of victims of family and domestic violence have experienced online abuse- it’s a devastating crime that follows people into their homes,” says Moo Baulch, Domestic Violence NSW Chief Executive. “it can feel almost inescapable when you’re being stalked, bullied and harassed online.”
Attorney-General, Mark Speakman told reporters, “modern technology requires modern laws”.
Unfortunately, the current NSW laws do not adequately reflect our modern technology. NSW does not have a specific offence for cyber bullying and online trolling.
Vulnerable people and their families will continue to be affected with devastating consequences if our state government doesn’t act fast enough to keep up with technology.
What are the New Cyber Bullying Laws in NSW?
Surprisingly, NSW has not, until now, had a specific offence of online trolling or cyber bullying. The current NSW law doesn’t really clarify whether cyber bullying or internet trolling constitutes “intimidation” or “Stalking”.
Currently in NSW, section 13 of the Crimes (Domestic and Personal Violence) Act 2007 prohibits you from engaging in conduct that amounts to ‘stalking’ or ‘intimidating’ another person if you intended to cause fear of mental or physical harm (or knew your actions were likely to cause that fear), and if the alleged victim who is alleged to have been stalked or intimidated has had or has a ‘domestic relationship’ with you.
‘Stalking’ in NSW is currently defined in section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It includes behaviour of following, watching, frequenting or approaching a person’s residential home, work, or any location the person frequents for social or leisure activity.
‘Intimidation’ in NSW is currently defined in section 7 of the same legislation. ‘Intimidation’ includes behaviour that is considered to be harassment, molestation, or approaching someone in such a way that causes that person to fear for his/her safety, or behaviour that causes a ‘reasonable apprehension’ of violence, injury or damage to a person or that person’s property.
A person guilty of stalking or intimidating under section 13 will face a penalty of up to 5 years imprisonment and/or $5,500 fine.
The new laws on stalking and intimidation charges are expected to make it easier for police to prosecute and convict offenders of cyber bullying and online trolling by broadening and clarifying the meaning of ‘intimidation’ and ‘stalking’. This will be specific for online bullying and trolling offenders.
The change in law will expand on the definition of “stalking” and “intimidation” to include online activities such as social media (Facebook, twitter etc). This will also then make it easier for police to use this as a basis to immediately take out AVOs against cyber bullies and online trolls to protect the victims before, during and after court proceedings.
This will mean that people guilty of online trolling or cyber bullying in NSW will now face a maximum penalty of up to 5 years imprisonment.
While NSW hasn’t had a specific offence of cyber bullying and online trolling, the Commonwealth Criminal Code which applies to all States and Territories in Australia has laws to protect victims from harassing, menacing or offensive behaviour from the use of a carriage service such as the internet under 474.17 of the Criminal Code (Cth). However, it only carries a maximum penalty of up to 3 years imprisonment if found guilty.
The new tougher NSW penalties of 5 years imprisonment for cyber bullying and online trolling offenders as oppose to the Commonwealth penalty of 3 years is hoped to send a clear message of general deterrence.
The new state laws that are expected to be introduced later this month.
To recap on this topic, see our last blog on the law and penalties for stalking and intimidating.
The Law and Penalties for Using a Carriage Service to Harass, Menace or Offend Under the Commonwealth Code
Under section 474.17 of the Criminal Code Act 1995 (Clth), you will face a penalty of up to 3 years imprisonment if police can prove each of the following elements to a charge of using a carriage service to menace harass or cause offence nsw:
- You used a ‘carriage service’ such as a phone, computer (includes social media and email); and
- You used that in a way that a ‘reasonable person’ would find it harassing, offensive or menacing in the circumstances.
What are the Defences to a Charge of Using Carriage Service to Harass, Menace or Offend?
Your charge will be dismissed if any of the following defences apply to your case:
- Self Defence: where your conduct was done while you held the belief that it was necessary to protect yourself, and where the court considers that your response was a reasonable one in the circumstances perceived by you at the time.
- If you are under the age of 10.
- If you’re over the age of 10 but less than 14, and if you didn’t know that your behaviour was wrong at the time.
- Duress or necessity.
- Your behaviour was not voluntary. This can include circumstances that you did this with impaired consciousness, during sleep where you weren’t able to control your actions.
- Where at the time of committing the offence, you were suffering from a mental illness that resulted in you not knowing the rightness or wrongness of what you were doing, or where your mental state stopped you from knowing the quality and nature of your actions.
- Where your actions can be considered involuntary in circumstances you were so intoxicated from drugs or alcohol at the time. This can only apply if you didn’t voluntarily consume the drug or alcohol.