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Cyber bullying also attracts potential criminal action which is
often not appreciated.
As today is the National Day of Action Against Bullying and
Violence, I thought it appropriate to post another blog about cyber
bullying.
In my last blog I discussed some aspects of cyber bullying and
in particular the circumstances under which a school authority may
be at risk of a civil claim for breach of its duty of care.
In this blog I am going to discuss some of the criminal aspects
of cyber bullying, because it is apparent from many discussions I
have with educators that the criminal consequences are sometimes
overlooked.
In February 2003, the NSW Crimes Amendment (School
Protection) Act commenced to provide protection where a person
assaults, stalks, harasses or intimidates any school staff or
student while attending a school. I see no reason why, in certain
circumstances, these expressions might not encompass cyber
bullying. Unfortunately, the section is somewhat limited in that it
only provides protection for a member of staff or student when the
act takes place on school premises or while entering or leaving
school premises. Therefore, this provision would not cover cyber
bullying activities occurring at home or on the way home.
Section 31 of the NSW Crimes Act makes it an offence to
maliciously send or deliver, or cause to be received, any document
threatening to kill or inflict bodily harm. In certain
circumstances, cyber bullying might fall within the ambit of this
section.
Moreover, cyber bullying behaviour which constitutes harassment,
intimidation or stalking may in some circumstances be in breach of
criminal legislation which applies in most states of Australia.
Where cyber bullying consists of the use of non-consensual
visual recordings, often on a mobile phone camera, such that there
is a gross breach of privacy, the posting of such recordings on a
website may also constitute a criminal offence.
Cyber bullying can also take place through telecommunication
services. Where telecommunication services are used to menace,
threaten or hoax other persons, which can often be the case in
cyber bullying, the Commonwealth Criminal Code may provide some
protection.
Finally, cyber bullying can, in some circumstances, constitute
an assault. It must be remembered that assaults cover not only
physical force, but also situations where a person fears imminent
harm by means of a verbal threat. Most cyber bullying is verbal in
nature and in some cases the criminal offence of assault might be
triggered by the bully's conduct.
Conclusion
It can be seen from this brief summary that cyber bullying is
extremely complex. It not only encompasses a number of civil causes
of action, including civil duty of care issues canvassed in my last
blog, but also has many criminal elements. Although not all of
these criminal elements apply in every state of Australia, they are
reasonably similar from state to state.
Children and teachers who are the subject of cyber bullying
might keep these criminal sanctions in mind should the cyber
bullying escalate to the point of triggering one of these
offences.
