Cyberbullying: Legislative Protections and Punishments

Cyberbullying: Legislative Protections and Punishments

Along with the rise of the use of internet communication methods, there has also been a rise in abuse of these technologies for the purpose of bullying & harassment.[1] Cyberbullying is defined by the Office of the eSafety Commissioner as:

“the use of technology to bully a person or group with the intent to hurt them socially, psychologically or even physically.”[2]

What does the Law say?

Cyberbullying has been made illegal under several laws, which includes but is not limited to the following:

1. Section 35(2) (f) – (g) of the Crimes Act 1900 (ACT)[3], which has a maximum penalty of 5 years imprisonment;
2. Section 474.17 of the Criminal Code 1995 (Cth), which deals with the use of a carriage service to menace, harass or cause offence.[4] An offence under this section may attract a penalty of 3 years imprisonment.[5]

The legislation makes no specific reference to ‘cyberbullying’, however cyberbullying offenders may be charged under these provisions.

What can you do about it?

Cyberbullying can involve sending text messages or using a messaging website, sending images or videos, posting media on the internet, and a variety of other activities.[6]

Through the Enhancing Online Safety for Children Act 2015, the Australian Government has established the Children’s e-Safety Commissioner, which has the capacity to deal with cyberbullying complaints.[7] Cyberbullying against children should be reported to the Office of the eSafety Commissioner.[8]

For cyberbullying against adults, a complaint should be made to the relevant police force.[9]

Court Treatment of Cyberbullying

In Australia, there have been a number of examples of the court’s treatment of cyberbullying offences, including the following cases.

R v Hampson [2011] QCA 132

In this case, the defendant was charged with a number of offences, which involved posting offensive images and messages to a Facebook site which served as a tribute page to missing children. Two of the four offences he was charged with involved the use of a carriage service in a menacing or offensive way, and he was charged for these offences under section 474.17 of the Criminal Code Act.[10]

The appellate judge noted that more serious consideration would be given to conduct by the defendant that would have caused genuine fear or such psychological effect or caused the victims to alter their daily behaviour.[11]

He was found guilty of all charges, and initially sentenced to 3 years imprisonment. However, this was reduced on appeal to 2 years with several other conditions.[12]

Agostino v Cleaves [2010] ATSC 19

The case of Agostino v Cleaves provides an example of the judicial treatment of cyberbullying in the ACT jurisdiction. In this case, Agostino had sent multiple offensive and threatening messages to the victim and had made threatening posts on the victim’s Facebook wall and the Facebook walls of other people related to the victim. Agostino was charged for these offences under Section 474.17(1) of the Criminal Code Act.[13]

Agostino was found guilty in the ACT Magistrates Court, and this decision was upheld on appeal, due to the gravity of the offences and the effect that they had on the victim. However, the original sentence of 6 months imprisonment was amended to account for the time spent in prison by Agostino in the lead up to the appeal hearing.

These cases show that cyberbullying is not ignored by the judiciary, and that serious penalties can be imposed for cyberbullying activity, depending on the gravity of the offences and the effect that the actions have on the victim(s).

[1] Urbas, G, Cybercrime: Legislation, Cases & Commentary, LexisNexis Butterworths 2015, p. 233.

[2] Office of the eSafety Commissioner, Cyberbullying, accessed on 13 November 2018, https://www.esafety.gov.au/esafety-information/esafety-issues/cyberbullying.

[3] Crimes Act 1900 (ACT), s 35(2)(f)-(g).

[4] Criminal Code Act 1995 (Cth), s 474.17.

[5] Criminal Code Act 1995 (Cth), s 474.17(2).

[6] P K Smith, J Mahdavi, M Carvalho, S Fisher, S Russell and N Tippett, ‘Cyberbullying: Its Nature and Impact in Secondary School Pupils’ (2008) 49(4) Journal of Child Psychology and Psychiatry 376.

[7] Explanatory Memorandum to the Enhancing Online Safety for Children Bill 2014 (Cth).

[8] Office of the eSafety Commissioner, Cyberbullying, accessed on 14 November 2018, https://www.esafety.gov.au/esafety-information/esafety-issues/cyberbullying.

[9] NSW Police, Cyberbullying, accessed on 14 November 2018, https://www.police.nsw.gov.au/safety_and_prevention/safe_and_secure/online_safety/online_safety_accordian/cyberbullying.

[10] Criminal Code Act 1995 (Cth), s 474.17(1).

[11] R v Hampson [2011] QCA 132, 34.

[12] Ibid, 5.

[13] Criminal Code Act 1995 (Cth), s 474.17(1).