Cyberbullying – What is the Crime?

The article Cyberbullying – What is the Crime? is written by Doogue + George Defence Lawyers.

Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.
 

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If you are an internet user, then you will have likely come across cyberbullying in one way or another. Cyberbullying typically manifests in harassing behaviour, such as sending a person offensive or threatening messages, posting embarrassing comments or photos about someone, spreading rumours or misinformation about someone online, sending or posting nude or sexual images without the person’s consent, or pretending to be someone online with the intention of humiliating them.

In some cases, cyberbullying is a crime under national or Victorian law. We outline some key criminal offences below.

Using a Carriage Service to Menace, Harass or Cause Offence

It is a crime to use a device or the internet in a ‘menacing, harassing or offensive way’.¹ The test for determining what is menacing, harassing or offensive is whether a ‘reasonable person’ would consider it so. In a recent case, an accused had been drinking with friends. He prank-called his mother-in-law multiple times in one evening. Once she answered, the accused made comments about her physical appearance and made hoax threats. The accused said he was ‘just having a laugh’, but the court found that a reasonable person would find the content and nature of the calls harassing and offensive. The maximum penalty for this offence is 3 years imprisonment. Where private sexual material is sent in a menacing, harassing or offensive communication – for example, a person is sent a naked photo of themselves that an ex-partner had shared without their permission – the maximum penalty is imprisonment for six years for the person sending the correspondence.²

Stalking

A person commits stalking if they engage in a consistent behaviour that is intended to cause the victim mental or physical harm, including self-harm, or make the victim fear for their safety or the safety of someone else.³ The maximum penalty for stalking is 10 years imprisonment. Persistent online bullying can also constitute stalking under Victorian legislation following an amendment in 2003. It was further amended in 2011 to expand the definition of stalking to cover threats and abusive or offensive words or actions and cover stalking intended to cause psychological harm, suicidal thoughts or self-harm. This means that, like stalking, cyberbullying can be punishable by a maximum term of 10 years imprisonment.

The Victorian Law Reform Commission has summarised real cases in Victoria for the purpose of demonstrating cyberstalking:

Encouraging Suicide

It is not a criminal offence to commit suicide.⁴ However, if a person encourages or assists another person to commit suicide, it is a Commonwealth offence. To establish the offence, the prosecution must prove beyond reasonable doubt that:

• A person used a device or the internet to access, transmit, make available, publish or distribute material, or cause material to be transmitted;
• The material counselled or incited the commission or attempted commission of suicide, whether directly or indirectly; and
• The person intended to counsel or incite the commission or attempted commission of suicide; or
• The person intended for the material to be used by another person to counsel or incite the commission or attempted commission of suicide.

It is not unusual for people online to tell others to kill themselves. It can be seen in any comment section on any website. Comments of this nature are so frequently made that an internet acronym for kill yourself – ‘KYS’ – has emerged. While someone telling you to ‘KYS’ could constitute a few criminal offences, it is unlikely to constitute the charge of encouraging suicide unless it can be shown that the commenter intended that the victim commit suicide.

It is also an offence to possess, control, produce, supply or obtain suicide-related material for use through a carriage service if you intended the material to be used by you or another person to commit suicide. Practically speaking, this offence makes it illegal to share anything that instructs or assists a person to commit suicide.

Victorian legislation also provides three suicide-related offences,⁵ which may be relevant where the accused’s actions did not directly cause the death of the deceased. These offences are:

• Inciting another person to commit suicide where the other person does so, or attempts to do so;
• Aiding and abetting another person to commit suicide where the other person does so, or attempts to do so; and
• Committing either of the above offences pursuant to a suicide pact (‘being a party to a suicide pact’).

A person is not guilty of an offence merely because the person uses the internet or a phone to engage in public discussion or debate about euthanasia or suicide or advocate reform of the law relating to euthanasia or suicide so long as the person does not intend to use the material concerned to incite suicide or that it be used by another person to counsel or incite suicide. Ultimately, for a conviction, the accused must have intended that the victim commit suicide.

Consequences

In response to demand for better support for Australians experiencing cyberbullying, the Australian Government set up the Office of the eSafety Commissioner to handle complaints about offensive online conduct and assist in educating Australians about online safety. The eSafety Commissioner has powers to identify those who post harmful content and compel websites to remove the material. If they fail to do so, the individual poster and the website can face significant fines.

If you commit one of the offences listed above, the consequences can be very serious and the offending conduct could break multiple laws. The maximum penalties for these offences vary. If you have committed one or more of the crimes we have talked about and you are contacted by the police, we strongly recommend that you get legal advice straight away.

Should you require crisis support, please contact Lifeline on 13 11 14 or Beyond Blue on 1300 22 4636.

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_{[1]S 474.17 Commonwealth Criminal Code.
[2]S 474.17A(1) Commonwealth Criminal Code.
[3]S 21A Crimes Act 1958.
[4]S 6A Crimes Act 1958 (Vic).
[5]S 6B Crimes Act 1958 (Vic).}

Date Published: 30 January 2023