Because cyber-bullying is a relatively new phenomenon, and because many cyber-bullying cases go unreported due to the relative youth of offenders, there is a limited amount of Australian cyber-bullying case law. However, the two most public criminal prosecutions in Australia are those of Gerada and Usmanov, and as such they are worth closer examination.
a. Shane Gerada case
Gerada sent over 300 threatening text messages to 17-year-old Allem Halkic over the course of a few months. Over two days in February, Gerada sent Halkic five particularly aggressive messages, one that read, “Ur all mouth and no action, wait till I get my hands on u, and I’m telling u now ill put you in hospital.” Gerada also used the MySpace social-networking site to falsely claim that Halkic had formed a relationship with another friend’s girlfriend. Soon after these events Halkic committed suicide.
Gerada pleaded guilty to a stalking charge and received a sentence of just 200 hours community service. The magistrate, Peter Reardon, pointed to the fact that Gerada never intended for, or incited, Halkic to take his own life, but made reference to the fact that young people must think about the consequences of cyber-bullying “A message needs to be sent to the community that this sort of act should be punished.” In light of these comments and the seriousness of Halkic’s death, it seems puzzling that Gerada would be sentenced to such a strikingly lenient sentence.
b. Police v Ravshan Usmanov
Usmanov uploaded six nude photographs of his ex-girlfriend to Facebook without her permission. After she asked that he take them down he did so, but he then reposted them and sent them to her roommate. Upon prosecution, Usmanov pleaded guilty to an offence of publishing an indecent article under s 578C of the Crimes Act 1900.
NSW Deputy Chief Magistrate Mottley, who due to a lack of case law could not cite any NSW cases to assist in her judgement, pointed to Usmanov’s premeditation and his intention to expose the photos to as many people as possible, as an elevation of the seriousness of the offence, and sentenced him to six-months imprisonment.
Mottley stated that the prison sentence was aimed at “deterring both the offender and the community generally from committing similar crimes” and pointed at the unlimited threat offered by social networking sites “Facebook gives instant access to the world… incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred.” Ultimately however, Usmanov’s sentence was suspended, and he spent no time in prison.
c. Responses to Australian Case Law
In both of these cases the magistrates pointed to the seriousness of cyber-bullying and its consequences in an attempt to deter the general community from engaging in such behaviour. However, despite the extreme harm suffered by the victims, both magistrates only handed down lenient sentences to the offenders. It would seem, therefore, that there are problems with the applicability of the current legislation when it comes to cyber-bullying offences, and as such, prosecutors are forced to rely on legislation ancillary to the main issue. Perhaps then, Australia should consider a specific cyber-bullying offence.
This idea has been forwarded by Alastair Nicholson, chair of The National Centre Against Bullying and former Chief Justice of the Family Court. In response to Gerada’s lenient sentence, Nicholson expressed his view that there needs to be more specific cyber-bullying laws “There is a very strong argument that it should be considered a specific offence… You need to have some firm framework in which people can operate and know what they can and can’t do.”
Furthermore, Nicholson indicates that without a specific offence for cyber-bullying, cyber-bully perpetrators are being charged with the wrong criminal offences, sometimes with drastic effects; “You tend to get it in the stalking area, and with some of the sexually explicit communications get into breaches of pornography laws… [This leads] to children, quite young people, being placed on sexual offences registers, when yet it is some stupid piece of adolescent behaviour that has nothing to do with the sort of behaviour that those registers are aimed at.”
David Vaile, executive-director of The Cyberspace Law and Policy Centre at the University of NSW, is of the opinion that online crimes such as cyber-bullying have historically not been taken as seriously as physical offences, and because of this there are very few convictions under harassment and indecent publication offences. This points to the fact that there needs to be a change in the way people view cyber-bullying. Such a shift is currently being actualised, as various publications have featured internet-trolling stories as front-page news, however, widespread education on cyber-bullying is also necessary.
This notion that cyber-bullying will be taken seriously once education and empowerment have been proliferated has been suggested by Prime Minister Julia Gillard, “Empowering students about how to become part of the solution to bullying, and also empowering teachers to help them respond to bullying behaviour, how to intervene when they witness bullying rather than just standing by, and how to report it [will prove most effective]”.