Cyberbullying Laws in Australia

The internet is a powerful and useful tool, but it can also be used for violence, harassment and bullying. Cyberbullying is different from regular bullying because it takes place entirely online, through mobile phones, texting, chat rooms, or social media sites like Facebook and Twitter, which can make it very difficult for the victim to escape the harassment and hesitate to involve authority figures.

Cyberbullying is a serious problem affecting young people in Australia. In fact, the federal government reports that as many as one-third of students have been bullied online, with extreme cases leading to serious mental or physical injury, and even suicide.

What Is Cyberbullying?

According to the Human Rights Commission website, cyberbullying is defined as “using the internet, a mobile phone or a camera to hurt or embarrass someone.” Online bullying and online abuse can take many shapes and forms which include hurtful text messages, threatening victims with immediate danger through instant messaging, spreading lies, disseminating private information or personal details, using status updates to post hurtful messages or share intimate images.

In 2015, the Australian government set up the Office of the eSafety Commissioner to handle complaints about online misbehaviour. Since its inception the commission has received hundreds of complaints about serious cyberbullying. In 2016-17 there were a whopping 305 complaints of cyberbullying, a 63 per cent increase from the previous year.

What Are The Effects Of Cyberbullying?

Cyberbullying is a common occurrence that affects children, teenagers and adults alike. As recently as 2017, 1 in 5 Australian young Australians reported being socially excluded, threatened or abused online, while 1 in 5 admitted to behaving in a negative way to a peer online, according to eSafety Commissioner.

The effects of cyberbullying can affect people in many ways including:

• Mentally – feeling upset, embarrassed, hopeless, stupid or angry
• Emotionally – feeling ashamed, loss of interest in things you love, withdraw and low self-esteem
• Physically – becoming tired, losing sleep, experiencing physical manifestations of stress like headaches, stomach aches, racing heart or chest pain.

Is Cyberbullying Illegal In Australia?

Yes. Serious online harassment and bullying is a crime under the Criminal Code Act 1995, and can carry a penalty of three years’ prison or a fine.

To learn more about what constitutes cyberbullying and other common questions about cyberbullying, read 10 things teens want to know about cyberbullying.

What Criminal Laws Apply To Cyberbullying?

In response to increasing rates of social media bullying the NSW State Government is introducing legislation to clarify the definitions of ‘stalking’ and ‘intimidation’ in regards to cyberbullying.

Currently, in New South Wales, the Domestic and Personal Violence Act 2007 under Section 13 (more commonly known as ‘Dolly’s Law‘) is used to identify and charge cyberbullying offenders. Under this section, an individual is found guilty of an offence if they intend to cause another person to fear physical or mental harm through stalking or intimidation.

However, there are a variety of distinct offences under Australian legislation that constitute a criminal offence when using a mobile phone, email, or social networking sites to harass or abuse a certain individual.

Threatening, Harassing Or Offending Another Person Using The Internet or A Device

It is against the law to use a device or the internet in a menacing, harassing or offensive way by Section 474.17 of the Criminal Code Act 1995 (Commonwealth). To be considered a criminal offence, the behaviour of the offender must have a profoundly serious effect on the victim either mentally or physically.

An instance of cyberbullying may be considered a crime under this law if there are threats to harm someone, frightening them or if discourse such as messages, emails or posts make them feel emotionally angry or upset.

Stalking

Stalking is giving someone continuous unwanted attention by following them around or contacting them via the internet or other devices.

Cyberbullying in the way of stalking may be a crime under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) if it involves stalking someone to purposely make them feel threatened or frightened. This offence attracts a maximum penalty of 5 years imprisonment.

Intimidating

Section 474.15 of the Criminal Code Act 1995 (Commonwealth) criminalises the use of online or virtual communication that is intentionally sent or used to threaten to kill or hurt someone. This can include phones, text messages, emails or online posts.

Intimidation in the case of cyberbullying is where a person harasses someone else by posting, sending or sharing offensive material over social media, email or text messages with the intent to make them feel scared, threatened or fearful for their wellbeing.

Inciting Or Encouraging A Person To Commit Suicide

In serious cases, cyberbullying may fall under a criminal act if it is used to try and persuade someone to commit suicide. A person is guilty of a serious offence under section 31C of the Crimes Act 1900 (NSW), where, if they incite or counsel another person to commit suicide.

There are penalties if the other person does commit or attempts to commit suicide as a result of the encouragement regardless of the outcome. Offenders may also face liability from internet or phone service providers.

Sexual Images

The discourse of sexual images, either sending or posting, without another persons permission or consent is considered a cyberbullying crime.

More commonly known as ‘image-based abuse’, sharing of nude or sexual images without the subject’s consent is considered a crime nationally.

Defamation

Defamation can be defined as criminal and civil.

Criminal defamation is a criminal offence under Section 529 of the Crimes Act 1900 (NSW) where publishing false information about a person (knowing that the information is false) with the intention to cause that person serious harm.

Civil defamation is for victims of cyberbullying or defamation to seek compensation for damages to their reputation. A person who has experienced trauma, scandal or humiliation as a result of posts, multimedia or comments may have the right to legal action.

What Can The Law And Police Do An Offender?

Unfortunately, there is no specific offence for cyberbullying in NSW, however, there are offences under the Commonwealth Criminal Code, 1955. Division 474, subdivision C. Telecommunications Offences.

Serious cases of cyberbullying are considered a crime. The official first step once you have decided to proceed with a legal approach is to make an official complaint with the eSafety Commissioner.

If the harassing behaviour persists, you can contact the police. Specialised police officers are able to track down cyber bullies or bullies (anonymous or not) and charge them under the Commonwealth Criminal Code, 1955. Division 474, subdivision C. Telecommunications Offences.

If you wish to proceed with criminal charges, it is recommended that you keep a record of cyberbullying (including dates, times and screenshots, if applicable) in case you wish to involve the police or legal professionals moving forward.

What Are The Penalties For Cyber-Bullying?

Cyberbullying is not just a natural consequence of being part of a wired world. According to the Australian Cybercrime Online Reporting Network, serious online harassment and bullying is a crime under the Criminal Code Act 1995, with a maximum penalty of three years’ prison or a fine of more than $30,000.

The ​maximum​ penalties for some of the offences are high (e.g. up to 3 years in jail for using a phone or the internet in a menacing or harassing way, 5 years in jail for stalking or intimidating someone, and up to 10 years in jail for sending emails or posts which threaten to kill or hurt someone).   

The offence of cyberbullying requires one or more of the following:

• Using the Internet or phone to harass, threaten or offend an individual including using the device to spread messages or posts that can be viewed as offensive and could “cause anger, outrage, disgust or humiliation.”
• Intentionally trying to frighten or threatening to kill someone online via a mobile device, email or online post can have a penalty of 10 years in jail.
• Cyber-stalking an individual with unwanted phone calls, frequent text messages or emails that make the person feel unsafe can result in a maximum penalty of 5 years in jail.
• Logging into another person’s online account without permission and altering their information can fetch 2 years in prison.
• Online defamation of character is punishable by 3 years imprisonment.
• Encouraging someone to kill themselves online can lead to 5 years imprisonment.
• Another type of cyberbullying that has been on the rise in recent years is “revenge porn”, which involves posting explicit images or videos of someone else online to shame them. This offence carries a maximum three years prison and a $11,000 fine

Even though it is against the law to use the Internet to harass, stalk, intimidate or threaten anyone in Australia, prosecutions are unfortunately relatively rare. That is why anti-bullying proponents say that schools, work places and sports programs where bullying is known to occur have a responsibility to address and prevent cyberbullying, provide school counsellor, address repeated behaviour, and ultimately keep users safe.

What You And Your Child Can Do To Avoid Cyberbullying

When it comes to cyberbullying, prevention is the best tactic. It is important to ensure that your privacy settings are set so only friends can see what you post online and check who else has access to your accounts on a regular basis. If online harassment begins tell the instigator that it is not okay then block or delete the person from your accounts. You might also want to report this behaviour to a trusted adult.

NSW Police recommend several actions that an individual can take if they receive abusive texts, online posts or comments. These include:

• Not replying or responding to the bullies
• Checking  your privacy settings and blocking the person who is doing the bullying
• Reporting the person to the social media platform being used
• Keeping a record of any threatening or intimidating messages
• Making an official cyberbullying complaint with the eSafety Commissioner.
• Contacting police about any threatening or intimidating messages

If the threatening, intimidating and harassing behaviour persists, and you would like police to do something about it, they do have the capabilities of tracking down cyber bullies (anonymous or not) and charging them under stalking and intimidation existing laws, depending on the offence.

If you or anyone you know is being bullied online, contact Kids Help Line (1-800-55-1800) http://www.kidshelp.com.au or Lifeline (13 11 14) http://www.lifeline.org.au.