Australia: Cyberbullying - laws struggle to keep up with technology

In brief - Cyberbullying characterised by anonymity and instant access to victim

Unlike traditional bullying, with cyberbullying the perpetrator can often remain anonymous and can have instant access to their victim at any time of day or night. Schools and employers should be aware of this risk and take steps to mitigate it.

What is cyberbullying?

Despite its recent prevalence in the media and society in general, being a relatively new concept, a universally recognised definition for the term "cyberbullying" is yet to be accepted.

The term itself is attributed to a Canadian teacher, Bill Belsey. Following the Columbine and Alberta school shootings, Mr. Belsey founded Belsey defines cyberbullying as:

...the use of information and communication technologies to support deliberate, repeated, and hostile behaviour by an individual or group, that is intended to harm others.

Ria Hanewald, in her article Confronting the Pedagogical Challenge of Cyber Safety (Australian Journal for Teacher Education, vol. 33, no. 3, pp. 1-16), suggests that cyberbullying merely forms part of the broader category of "cyber violence", i.e:

...a range of harmful activities through the use of Information and Communication technologies... [such as] hate-speech, threats, stalking, harassment, sexual remarks, vulgar language and cyber bullying.

How does cyberbullying differ from traditional bullying?

The NSW legislative inquiry into the bullying of children and young people notes that:

Despite the lack of a universally accepted definition [of bullying], there are three critical features that appear in most definitions. These features are:
  • repetition – repeated hurtful behavior
  • intent to harm – intention to cause physical, psychological and/or emotional harm
  • power imbalance between the perpetrator(s) and the victim(s) – through differences such as physical size and strength, age or status within a peer group.

Typically, the traditional bully engages in intimidatory behaviours in an attempt to establish power and control over their victims. Traditional, face to face bullying might be physical or verbal, often resulting in psychological or physical harm.

Cyberbullying, on the other hand, is the act of engaging in intimidatory behavior through the use of electronic technologies such as email, text message, online chat rooms or via social media sites such as Facebook or Twitter.

While traditional bully victims at least benefited from some sort of reprieve once safely within the confines of home, the cyberbully has constant and instant access to his or her victim and in many cases is capable of retaining his or her anonymity. It is this anonymous, 24/7 aspect that sets the two forms of bullying apart.

Impact of cyberbullying on victims

Similar to traditional bullying, cyberbullying can have varying and long lasting effects on its victims, including:

  • Physical harm, self harm or suicide
  • Psychological harm including depression, anxiety, stress
  • Damage to reputation
  • Ancillary impacts, such as the knock-on effects of foregoing work, study or social life

What forms does cyberbullying take?

Examples of cyberbullying include:

  • uploading images or photoshopped images taken without the victim's knowledge or consent
  • posting cruel and negative messages or threats on a social networking site (e.g. posting nasty comments or threats on a victim's Facebook wall)
  • using personal information disclosed by a social networker against them
  • using a public forum to defame a victim or damage their reputation

Where does cyberbullying occur?

Cyberbullying is not confined to the younger generations. Whilst it may be most prevalent amongst the school and university age group, cyberbullying may also occur in the workplace or even in everyday social situations.

Importantly for employers and educational intuitions, instances of cyberbullying that occur in the workplace or at school raise issues of duty of care (statutory and common law), with any breaches potentially resulting in an employer or school being left open to potential civil claims.

Cyberbullying in Australia

In R v Hooper, the 33 year old respondent (who was living with the mother of his victim's fiancée) threatened his victim by way of two separate communications. Both by telephone call and text message, the respondent issued rather explicit threats towards the recipient of the call/messages, his father and his fiancée. The respondent was discharged by the trial judge without proceeding to conviction upon his giving security by recognisance of $500 and on condition that he be of good behaviour for two years and have no contact with named persons.

In 2009, Shane Philip Gerada sent threatening text messages to his friend, Allem Halkic. Gerada later told the ABC that he wanted ''revenge'' after finding out Halkic had told a mutual friend of disparaging comments Gerada had made about her. Following a raft of taunting text messages from Gerada, the then 17 year old Halkic took his own life.

This resulted in a landmark prosecution of a cyberbullying offence in Australia. Having admitted to sending threatening messages, Shane Philip Gerada was sentenced to an 18 month community based order and was directed to perform 200 hours of unpaid community work. (See Selma Milovanovic, Man avoids jail in first cyber bullying case, The Age, 9 April 2010.)

Although this was Australia's first prosecution related to cyberbullying, it is, unfortunately, not an isolated incident, with several others making headlines in Australian media since that time.

Laws lagging behind advances in technology

The aim of today's information and communication technology is to improve the quality of modern life. However, the easily accessible, 24/7 and often anonymous nature of information and communication technology has created a difficult to regulate sphere that provides a new and unfamiliar platform for children and adults alike to engage in a variety of bullying, harassing and stalking behaviours.

Although this is by no means a new phenomenon, specific cyberbullying legislation is yet to be enacted. Instead, it is wedged somewhere in between a myriad of criminal, civil and work health and safety offences.

Criminal liability for offences related to use of telecommunications

On a national level, Chapter 10 of the Criminal Code Act 1995 creates a number of offences relating to the use of telecommunications, including making it an offence to:

  • Use a telecommunications network with an intention to commit a serious offence (section 474.14)
  • Use a carriage service to make a threat (section 474.15; "carriage service" has the same meaning as in the Telecommunications Act 1997, i.e. a service for carrying communications by means of guided and/or unguided electromagnetic energy)
  • Use a carriage service for a hoax threat (474.16)
  • Use a carriage service to menace, harass or cause offence (474.17)

At state level, specific legislation provides for similar offences in various state and territory statutes.

The common law offence of criminal libel has been abolished in Australia; all Australian states and territories (bar Victoria) have enacted a statutory offence replacement (generally referred to as "criminal defamation"). Victoria has retained the common law offence which is now complemented by the statutory offence of publishing false "defamatory libel". (Please see the links to defamation laws at the end of this article.)

Essentially, in the criminal context, cyberbullying can come within a number of offences including assault, violation of state/territory stalking and/or harassment offences, criminal defamation, or criminal use of telecommunication services. (Please see the links at the end of this article.)

Alternatively, depending on where and when an act of cyberbullying took place, redress may be sought via common law civil remedies. In considering where and how redress should be pursued, regard will have to be had to where/when the cyberbullying incident(s) took place, for example was it in the workplace or at school or in another setting.

Cyberbullying at school

The Crimes Act 1900 (NSW) was amended by the Crimes Amendment (School Protection) Act 2002 (NSW) to make specific criminal provision in section 60E for assault, stalking, harassment or intimidation of any school staff or student while attending the school.

However, this novel NSW provision is restricted in its reach to incidents that occur when staff and students are "attending the school". Accordingly, section 60E will only be of limited application in the cyberbullying arena, arising only where the conduct actually occurs on the school premises or while entering or leaving school premises for the purposes of school activities.

Schools may also find themselves open to an action for negligence for breach of duty of care owed to a student who (whilst under the school's care) was subjected to cyberbullying that resulted in, for example, psychological harm.

Cyberbullying in the workplace

The duty placed on employers by work health and safety legislation to provide a healthy and safe working environment and safe systems of work imposes the responsibility on employers to ensure not only the physical health of their workers, but also their mental health. This includes ensuring that employees are not exposed to workplace bullying, harassment or discrimination.

Where an employer fails to comply with this obligation, redress may be had via both the Fair Work Act 2009 (Cth) and the various state/territory work health and safety statutes (resulting in, for example, a stop bullying order or substantial fines).

Civil action for defamation, invasion of privacy and trespass

In the civil context, due to the intentional nature of cyberbullying, the cyberbully may be open to an array of actions and various forms of liability, such as defamation, invasion of privacy or trespass to person (assault).

What should schools and employers do to reduce the risk of claims related to cyberbullying?

At present, no specific cyberbullying legislation exists in Australia. It is suggested that a formal national code would result in greater awareness and a better understanding of the implications of cyberbullying, thereby playing a deterring role.

In order for employers and schools to minimise exposure to claims in relation to cyberbullying, we recommend that you take the following steps.

  • Conduct a review of your computer and internet acceptable usage policy to ensure that it is up to date and that it includes harassment via information and communication technologies.
  • Implement policies and training and monitor behaviour to prevent cyberbullying in the workplace.
  • Ensure that all of your staff are regularly trained on what does and does not constitute cyberbullying and the need to adhere to the company policies and procedures.

Defamation laws

Crimes Act 1900 (ACT) section 439
Crimes Act 1900 (NSW) section 529
Criminal Code 1983 (NT) section 204
Criminal Code 1899 (Qld) section 365
Criminal Law Consolidation Act 1935 (SA) section 257
Criminal Code Act 1924 (Tas) section 196
Wrongs Act 1958 (Vic) section 10
Criminal Code 1913 (WA) section 345

Laws which cover cyberbullying

For Victoria, see Crimes Act 1958 (Vic) section 21A (stalking - includes publishing information on the internet or by an e-mail or other electronic communication to relating or purporting to relate to the victim or any other person); section 20 (threat to kill); and section 21 (threats to inflict serious injury).

For New South Wales, see Crimes Act 1900 (NSW) section 31 and section 199; and Crimes Act 1900 (NSW), as amended by the Crimes Amendment (School Protection) Act 2002 (NSW).

For Queensland, see Criminal Code 1899 (Qld) section 308 (threats to murder in document) and section 359 (threats).

For Tasmania, see Criminal Code Act 1924 (Tas) section 163 (threats to kill in writing).

For Western Australia, see Criminal Code 1913 (WA) ( Chapter XXXIIIA — Threats; sections 338A-338C);

For ACT, see Crimes Act 1900 (ACT) section 30 (threat to kill); and section 31 (threat to inflict grievous bodily harm).

For Northern Territory, see Criminal Code 1983 (NT) section 166 (threats constituted by words or conduct) and section 200.

For South Australia, see Criminal Law Consolidation Act 1935 (SA) section 19 (unlawful threats).

Aoife Gallagher-Watson
Key Contact:
Dan Brush
Information and communications technology
CBP Lawyers

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