Cyberbullying

Cyberbullying

The New South Wales Department of Education and Communities defines cyberbullying as the use of information and communication technologies to support repeated and deliberate hostile behaviour intended to harm others. This could be through text messages, instant messaging, and defamatory personal websites.

In Australia, there are numerous State and Commonwealth laws which contain provisions that are relevant to cyberbullying, including provisions relating to assaults, threats, intimidation, harassment, stalking and, child pornography/abuse. This article discusses two legislative measures that are currently in place, specifically the Commonwealth Criminal Code (Cth) 1995 and the Crimes Act (NSW) 1900.

1. Commonwealth Criminal Code (Cth) 1995

The Commonwealth exercises constitutional powers to make laws in relation to electronic telecommunications, including the Internet. The Commonwealth has power to legislate with respect to "postal, telegraphic, telephonic, and other like services". In effect, part 10.6 (section 473.1 to 475.2) of the Schedule of the Commonwealth Criminal Code contains offences concerning telecommunication services.

Section 474.15 provides that it is an offence for a person to use a carriage service to make a threat to kill, or to make a threat to cause serious harm. The term "carriage service" has the same meaning as in the Telecommunications Act (Cth) 1997, which defines it as "a service for carrying communications by means of guided and/or unguided electromagnetic energy". "Guided electromagnetic energy" includes the carriage of communications by means of a wire, cable, waveguide or other physical medium used; whilst "unguided electromagnetic energy" covers communications by means of radiocommunication. The term "carriage service" therefore includes the Internet, emails, telephone (fixed and mobile), faxes, etc.

In addition, under section 474.17(1), there is a maximum punishment of 3 years' imprisonment for using a telecommunications/carriage service in a way "that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive". Therefore, the taking of a photo using a camera phone would be covered by the Code if it were used for child pornography or images used to menace, harass or for other offensive purposes.

2. Crimes Act (NSW) 1900

Section 60E of the Act provides that "A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school … although no actual bodily harm is occasioned, is liable to imprisonment for 5 years [emphasis added].

Stalking and Intimidation

Section 545AB deals with offences relating to stalking and intimidation. Examples of offences relating to intimidation include teasing, making fun of or spreading rumours about someone online; and harassing someone or making threats electronically.

Documents Containing Threats

Section 31 states that a person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. The provision also states that it is immaterial whether or not the document is actually received, and whether or not the threat contained in the document is actually communicated to the person concerned.

Unlawful Access to Protected Data

Similarly, section 308H states that a person who causes unauthorised access to or modification or restricted data held in computer is guilty of an offence. Therefore, a person who accesses someone else's account and uses it to send abusive emails is guilty of such an offence.

Child Pornography

Section 91H provides that a person who produces, disseminates or possesses child pornography is guilty of an offence. Similarly, under section 474.22(1) of the Commonwealth Criminal Code, a person is also guilty of an offence if the person uses a carriage service to transmit 'child pornography' and 'child abuse' material. Therefore, a child whom takes a photo of another child in the shower after sport and sends it to everyone for a laugh is guilty of such an offence.

If you or someone you know is the victim of cyberbullying, or alternatively are being accused of cyberbullying, contact Sydney Lawyers and Associates Pty Ltd today. We can assist and guide you through the legal processes involved in your circumstances.