Where does Cyber-bullying fit in the Current Australian Criminal Framework?

While there are no specific cyber-bullying offences in Australia, there are a number of criminal laws that may be used to charge cyber-bullying offenders.

However, before an offender can be charged, they must be capable of being deemed by the law to be responsible for their own actions. Those cyber-bullies who are under 10 years of age will not be liable for their actions, while those aged between 10 and 14 will only be liable where it can be proven beyond reasonable doubt that they understood that they should not have committed the offence. Accordingly any offender over 14 years will be criminally liable.

a. Misuse of Telecommunications Services (Commonwealth Offence)

The Commonwealth Criminal Code Act 1995 makes it a criminal offence to misuse telecommunication services. Because cyber-bullying comprises the abuse of internet and phone services, these laws may provide a form of redress against cyber-bullies.

Section 474.17 of this Act makes it an offence to use a carriage service[1] “in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.” This holds a penalty of up to three years imprisonment. The threat here may be explicit and contained in the content of the communications, or implicit and inferred by the type of use (i.e. multiple postings on a website), as long as a reasonable person would regard the threat as being menacing, harassing or offensive.

Section 474.15 of this Act provides redress against more aggressive acts, and makes it an offence to use a carriage service to threaten to cause serious harm (punishable by seven years imprisonment) or to threaten to kill (punishable by ten years imprisonment).

The threats referred to in this section may be directed at either the person receiving the messages (the recipient) or another person altogether, as an offence will be established only where the bully intends that the recipient fears that the threat will be carried out. [2] Thus, the recipient need not actually fear that the threat will be carried out, it only needs to be intended that they do. This is significant as it may be difficult to prove this subjective intention in a courtroom.

By changing this element of subjective intention to an objective question of whether a reasonable person, after receiving such a threat, would be fearful, the difficulties in proving that a cyber-bullying offender actually intended that their victim is fearful would be overcome.

b. Assaults, Intimidation and Harassment at School (NSW)

New South Wales is the only Australian jurisdiction to enact legislation specifically directed at bullying in schools. In its terms, these laws also include cyber-bullying.[3]

The Crimes Act 1900 (NSW) s 60E makes it an offence to ‘assault, stalk, harass or intimidate any school student or member of staff of a school, while the student or member of staff is attending a school’.

While it would seem that bullying-specific legislation would be the best avenue to pursue a bullying-related offence, the breadth of the legislation is limited only to staff and students while ‘attending the school’ – defined in s 60D(2) as that which occurs on the school premises, or while entering or leaving the school premises in connection with school work, duty or care.

These limitations significantly curtail the applicability of these laws for cyber-bullying, as they do not even extend to cover cyber-bullying that occurs by a bully who is on school grounds, using a school computer, against a target who is not on school premises.

By expanding the scope of this legislation to include bullying that takes place outside of schools, these laws would be much more useful in criminalising cyber-bullying.

c. Assault

The landmark case Stephens v Myers sets out that an assault will be committed where an intentional act causes a person to apprehend the infliction of immediate unlawful force. This offence, while differing slightly in different Australian jurisdictions, contains the general requirements that there be an attempt or threat to apply force, and that the threat creates an apprehension of fear in the victim of present or immediate harm by reason of the offender’s apparent ability to carry out the threat.

It would seem then, that on its face, assault laws could be used to prosecute cyber-bullies who send threats over telecommunications services. However, under Queensland, Tasmania and Western Australia statutes, words or images sent online are insufficient to, alone, make out a threat.[4] Furthermore, due to the geographic distance between assailants and victims in cyber-bullying cases, it may be difficult to prove that a threat creates an apprehension of fear of a present or immediate harm.

One key question for the harm requirement is whether it extends to psychological harm. In R v Ireland and Burstow, the English House of Lords proposed that the Offences Against the Person Act 1861 (UK) should be interpreted in light of modern science, so as to extend the definition of ‘bodily harm’ to include mental harm and psychiatric injury, so long as that injury amounts to a ‘recognisable psychiatric illness’.

The Australian High Court has recognised psychiatric harm as a form of damage warranting compensation in Gifford v Strang Patrick Stevedoring. Thus, it would follow that a similar interpretation could be applied to Australian criminal statutes, so that where cyber-bullying leads its target to suffer a recognisable psychiatric illness, a criminal offence will have been committed.

By amending Queensland, Tasmanian and Western Australian statutes so that words and images posted online are capable of making out a threat, these states would be catching up with other Australian jurisdictions in reflecting the modern threats of the internet. Furthermore, the law of assault should be extended to recognize that where a victim suffers a recognisable psychiatric illness, a criminal offence would have been committed.

d. Stalking and Harassment

Stalking and harassment laws exist in all Australian jurisdictions, making it an offence to harass, threaten or intimidate a person. These laws, which were originally aimed at targeting domestic abuse and other situations where there is a clear imbalance of power, may be of particular relevance to cyber-bullying cases where there is a similar exploitation of power differentials.

While there are slight jurisdictional differences, the stalking and harassment laws require that an offender intend that their target apprehend a fear of violence or harm. This harm extends to both physical and mental harm. [5]

New South Wales legislation also includes an offence of ‘intimidation of annoyance’, which makes it an offence to use violence to cause a reasonable apprehension of “any injury to a person in respect of his property, business, occupation, employment, or other source of income.”[6] This provision has an extremely wide scope, as ‘injury’ is defined as ‘any actionable wrong of any nature’, and as such, it would cover damage to reputation or damages associated with the disclosure of personal information – both of which are potential and severe consequences of cyber-bullying.

It is of interest that Queensland’s harassment laws refer to ‘at least one occasion’ of offensive conduct,[7] while all jurisdictions require repeated aggression. Thus it can be viewed that Queensland’s laws encapsulate Dooley’s definition of cyber-bullying (i.e. can comprise just one instance of victimisation multiplied by online viewership) while all other jurisdictions mirror Olweus’ definition.

By embracing Dooley’s definition of cyber-bullying, and reducing the requirement of ‘repeated aggression’ to ‘at least one occasion of offensive conduct’ in all

State and Territory harassment laws, the Australian legal system will be better equipped to charge cyber-bullying perpetrators.

e. Criminal Defamation

While prosecution for criminal defamation is rare, where cyber-bullies post derogatory or denigrating material on the internet that reaches a high level of criminality, state prosecution may be warranted. This offence exists in all Australian jurisdictions.[8]

New South Wales laws specify that criminal defamation will arise where “a person who, without lawful excuse, publishes a matter defamatory of… the victim, knowing the matter to be false, and with the intent to cause serious harm… or being reckless as to whether such harm is caused.”[9] This offence is punishable by up to three years imprisonment.

Because mens rea is a crucial element of criminal defamation, a prosecutor must show that the offender had both knowledge of the falseness of the information, and an intention to cause serious harm (or reckless indifference towards it). This may prove extremely difficult where there is no admission of guilt, as each fact must be proved by inference, and as such, criminal defamation may be difficult to prosecute.[10]

f. Commonwealth v State legislated offences

There may be advantages with pursuing a Commonwealth-legislated offence rather than a state-legislated offence when cyber-bullying takes place over state lines (i.e. where a perpetrator lives in Victoria and a victim lives in NSW). Where such occurrences take place, by pursuing a state-legislated offence there may be questions as to which state’s police have the onus of investigating the matter and whether an offence can be prosecuted at all. These problems do not arise with Commonwealth offences, as federal police can undergo the investigation and the federal government can prosecute any offence that occurs in an Australian jurisdiction.

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[1] A carriage service is defined as a ‘service for carrying communications by means of guided and/or unguided electromagnetic energy’.

[2] Fear is defined to include apprehension in in S 474.15(4).

[3] Crimes Amendment (School Protection) Act 2002 (NSW).

[4] Criminal Code Act 1924 (Tas) s 182(2) provides that words alone cannot constitute an assault. Criminal Code 1899 (Qld) s 245 and Criminal Code 1913 (WA) s 222 both refer to ‘threatening by physical gestures’, which would seem to preclude online words or images being sufficient. As per Butler, D., Kift, S., & Campbell, M.A. (2010). Cyber bullying in schools and the law: Is there an effective means of addressing the power imbalance? eLaw Journal: Murdoch Electronic Journal of Law, 16, 90.

[5] Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 8, 13.

[6] Crimes Act 1900 (NSW) s545B(2).

[7] Criminal Code 1899 (Qld), s 320A.

[8] Crimes Act 1900 (ACT) s 439; Crimes Act 1900 (NSW) s 529; Criminal Code 1983 (NT) s 204; Criminal Code 1899 (Qld) s 365; Criminal Law Consolidation Act 1935 (SA) s 257; Criminal Code Act 1924 (Tas) s 196; Criminal Code 1913 (WA) s 345.

[9] Crimes Act 1900 (NSW) s 529(3).

[10] Waterhouse v Gilmore (1988) 12 NSWLR 270 at 290.