Cyberbullying

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.

This article is intended for guidance, not legal advice. For legal advice, we encourage you to get in touch with our criminal lawyers Sydney team.

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.

By Poppy Morandin and Jimmy Singh.

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