Cyberbullying – What Are the Legal Consequences?

Social media has revolutionised the way in which we interact with others, and while it can be a great tool for keeping in touch with loved ones and sharing funny photos with friends, it can also be used in more sinister ways. Violence, harassment and bullying on social media has risen by alarming levels in recent years, particularly amongst school aged children. As many as one-third of students have reported being a victim to some form of online bullying, and in extreme cases it has led to serious mental or physical injury, and even suicide. Cyberbullying is a serious crime that can happen to anyone, but just because it happens remotely, it doesn’t mean it goes without legal consequences.

What is Cyberbullying?

According to the Human Rights Commission, cyberbullying is defined as “using the internet, a mobile phone or a camera to hurt or embarrass someone.” Differing to regular bullying, cyberbullying takes place entirely online, through mobile phones and devices, using text messages, chat rooms, and social media platforms. Online abuse takes many forms but most commonly it involves cruel or intimidating messages, hurtful social media posts, threats of immediate danger through instant messaging, the spreading of lies, publicising private information, and the sharing of intimate images.

What Criminal Laws Apply to Cyberbullying?

In serious cases, cyberbullying can be a crime under the Criminal Code Act 1995 and can carry a penalty of hefty fines or even jail time. The law in this area is complicated, however, there are a variety of distinct offences under Australian legislation that constitute a criminal offence when using a mobile phone, or the internet to harass or abuse someone.

Using a phone, device, or the internet to harass, or offend an individual – To be considered a crime, the behaviour must be likely to have a serious effect, either mentally or physically, on the person targeted. This includes threats to harm or scare someone, or if messages, emails, or posts make someone feel seriously angry or upset.

Stalking – Cyberbullying may be a crime under both national and Victorian law if it involves stalking someone. Stalking involves repeated behaviour which is purposely done with the intent to make someone feel scared, to cause them physical or mental harm, or to encourage them to harm themselves. Cyber-stalking an individual with unwanted phone calls, frequent text messages or emails that make the person feel unsafe can result in a maximum penalty of 5 years in jail.

Threatening or intimidating behaviour – Using a phone or the internet to scare someone by threatening to kill or seriously harm them is also considered a crime under Victorian law. It is also considered a crime to threaten their property, or to threaten rape or sexual assault. Intentionally trying to frighten or threatening to kill someone online can have a penalty of 10 years in jail.

Encouraging suicide – Under national and Victorian law, it is a serious crime to use a phone or the internet to encourage or help someone to commit suicide. Encouraging someone to kill themselves online can lead to 5 years imprisonment.

Explicit images – Cyberbullying could be a crime if it involves sending or threatening to send or post nude or sexual images of someone without their consent. This is called image-based abuse and it is a crime in Victoria and is also against national law. Posting explicit images or videos of someone else online is an offence which carries a maximum three years prison and a $11,000 fine.

Defamation – It is a crime under Victorian law to maliciously publish untrue things about someone which damages their reputation. Online defamation of character is punishable by 3 years imprisonment.

There Are Several Civil (Non-Criminal) Laws That May Apply

Cyberbullying may also breach some civil laws.

In Victoria it is a breach of civil law to encourage hatred, serious contempt or revulsion or severe ridicule towards someone because of their race or religion through the internet or in emails. It may also breach national anti-discrimination laws if it is ‘racial hatred’.

Civil defamation is for victims of cyberbullying or defamation to seek compensation for damages to their reputation. A victim who has experienced trauma, scandal, or humiliation as a result of online messages, posts, or comments may have the right to legal action.

How to Take Action Against Cyberbullying?

Prevention is the best tactic against cyberbullying. There are several things you can do if you receive abusive, threatening, or hurtful texts, online posts, messages, or comments.

  • Do not reply or respond to the bully
  • Check your privacy settings and block the person who is doing the bullying
  • Report the person to the social media platform being used

If the threatening, intimidating, or harassing behaviour persists, you should make an official complaint with the eSafety Commissioner. They can investigate serious cyberbullying which targets someone under 18, and in serious cases can refer the matter to the police.

If the behaviour continues even after lodging a complaint, you can also personally contact the police. Police officers are able to track down cyber bullies and charge them under the Commonwealth Criminal Code, 1955. Division 474, subdivision C. Telecommunications Offences.

If you wish to proceed with criminal charges, it is recommended that you keep a record of the cyberbullying (including dates, times, and screenshots) in case you wish to involve solicitors. Melbourne’s Robert Wood and Associates are here to help with an professional legal advice you need in relation to online abuse.

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