September 1, 2016 Cheryl Critchley

A Guide to Australian Cyber-Bullying & Sexting Laws

Girl Crying

Photo: Counselling / Pixabay

Cyber-bullying is illegal in Australia, but working out what aspects are covered and how can be a challenge. Sexting, cyber-bullying and their related offenses are covered by a range of state, territory and federal laws. Some jurisdictions have specific anti-bullying laws, while others use existing laws to prosecute cases.

Victoria also has its own anti-bullying and sexting laws. Regardless of whether a jurisdiction has specific cyber-bullying laws, related behaviours such as stalking, making threats and physical assault are generally covered by existing state and territory legislation.

Australian Federal Laws Relating to Cyber-Bullying & Sexting

Chloe’s Law

The youngest of eight siblings, Chloe Fergusson, 15, suicided after she was relentlessly bullied physically, verbally and online. The worst of it started after her mother, Elizabeth, died in 2006.

Chloe Fergusson

Chloe Fergusson. Photo: Facebook @ourfriendnowourangel

Chloe was called ugly, teased for not having a mother, thrown against lockers, called horrible names and socially excluded. After school it continued on social media. Chloe tried to brush it off, but the bullying affected her confidence. Things came to a head when a group of girls kicked and punched her after she got off the school bus, threatening to post footage of the attack on social media. Two days later she took her own life.

Chloe’s family collected more than 48,000 signatures on a petition calling for federal crime laws to incorporate a legal definition of cyber-bullying and to regulate it. They wanted a specific offence of cyber-bullying created and to take all possible actions to regulate, prosecute and educate against bullying in all forms, particularly cyber-bullying.

Enhancing Online Safety for Children ACT 2015

Children can now complain to a specific federal body if they are cyber-bullied. Passed in early 2015, the Enhancing Online Safety for Children Act established a Children’s eSafety Commissioner, a complaints system for reporting cyber-bullying material aimed at an Australian child and a two-tiered system for rapid removal of cyber-bullying material from large social-media services.

The Children’s eSafety Commissioner is an independent statutory office within the Australian Communications and Media Authority to administer cyber-bullying complaints. The commissioner will also promote children’s online safety, co-ordinate relevant Commonwealth department, authority and agency activities, conduct, accredit and evaluate educational and community awareness programs, make grants and advise the Communications Minister.

A child or their parent/guardian can lodge a complaint to the commissioner if they have reported the material to the specific social-media site first and did not receive an outcome. The commissioner will have the power to investigate complaints into cyber-bullying and conduct investigations as he or she sees fit.

Among other things, the legislation provides for:

  • Establishing the Children’s eSafety Commissioner, setting out the commissioner’s functions and powers;
  • A complaints system for cyber-bullying material targeted at an Australian child;
  • A two-tiered scheme for the rapid removal from large social-media services of cyber-bullying material targeted at an Australian child;
  • A mechanism for the commissioner to give end-user notices to require a person who posts cyber-bullying material targeted at an Australian child to remove the material, refrain from posting further material or apologise to the child for posting the material; and
  • Enforcement mechanisms.

Criminal Code Act 1995

Criminal Code Act 1995. Photo: legislation.gov.au

Who enforces cyber-bullying federal laws?

There is no specific offence of “cyber-bullying” under Commonwealth legislation, but it is an offence to use a carriage service to menace, harass or cause offence under s474.17 of the Criminal Code Act 1995. The maximum penalty is three years imprisonment or a fine of more than $30,000. This covers a wide range of cyber-bullying behaviour, such as making threats over social media or posting compromising photos.

State and territory police are responsible for investigating cyber-bullying and may apply relevant state/territory legislation or the Commonwealth legislation. In the ACT, as in some other states and territories, stalking legislation may cover some of the behaviours we see with “cyber-bulling”.

An Australian Federal Police (AFP) spokesperson says although it does not investigate such matters – it focuses on crimes against the Commonwealth – the AFP acknowledges that cyberbullying can be devastating. It also encourages the reporting of inappropriate or offensive content to the relevant internet or mobile-service providers or social-media sites to have it removed/deleted, and to contact their local police.

“As part of the AFP’s role in investigating crimes committed against the Commonwealth, the AFP’s Cyber Crime Operations investigates the compromise of computer systems of national significance,” the spokesperson says.

“This includes critical national infrastructure and information systems, major financial institutions and government agencies.”

A number of people have been convicted of using a carriage service to menace, harass or cause offence. Most of these prosecutions were conducted by state and territory police.

Cyber-Bullying and the AFP

  • Due to the internet’s borderless nature, unwanted contact, harassment or cyber-bullying can occur from anywhere in the world.
  • Schools and parents should become involved in the first instance, as they would with most “offline” bullying.
  • Schools should have a cyber-bullying policy with sanctions for students who bully others during or outside school hours.
  • Serious cyber-bullying or stalking cases can be reported to the Australian Cybercrime Online Reporting Network.
  • Through initiatives such as ThinkUK now, the AFP works with the private sector to educate about staying safe online.
  • The AFP’s High Tech Crime Operations Crime Prevention team presents at schools, junior sporting clubs and community groups about online risks and staying safe.

ThinkUKnow

More info www.thinkuknow.org.au

The Australian Cybercrime Online Reporting Network

Cybercrime can now be quickly and easily reported online. The Australian Cybercrime Online Reporting Network (ACORN) allows secure online reporting of online crimes. The Commonwealth, state and territory governments policing initiative also helps people to recognise and avoid common cybercrimes.

ACORNACORN educates and advises about common cybercrime, such as hacking, online scams, online fraud, identity theft and attacks on computer systems, and advises victims. It also covers stalking and cyber-bullying, which can be reported to ACORN if the actions are intended to make the victim feel fearful, uncomfortable, offended or harassed. Those being physically stalked or concerned about their safety should report to local police immediately.

Cyber-bullying or stalking involves someone engaging in offensive, menacing or harassing behaviour using technology. It can happen to people at any age, time and often anonymously.

Examples include:

  • Posting hurtful messages, images or videos online;
  • Repeatedly sending unwanted messages online;
  • Sending abusive texts and emails;
  • Excluding or intimidating others online;
  • Creating fake social-networking profiles or websites that are hurtful;
  • Nasty online gossip and chat; and
  • Any other form of digital communication that is discriminatory, intimidating, intended to cause hurt or make someone fear for their safety.

Australian State Laws Relating to Cyber-Bullying & Sexting

Each state has specific laws to protect its residents.

Victoria leads the way in cyber-safety laws, with legislation specifically covering bullying, stalking and sexting. Other state and territory laws relating to online behaviour vary. Some states and territories have specific cyber-related laws, while others rely on federal cyber-safety laws and/or existing state and federal criminal laws to cover cyber-bullying and other online crimes. Several use a combination of both.

Victoria

Victoria

Brodie Panlock

Brodie Panlock. Photo: Supplied

Brodie’s Law

Victoria’s 2011 anti-bullying laws make serious bullying a crime punishable by up to 10 years in jail. Dubbed “Brodie’s Law”, they were introduced after Brodie Panlock, 19, suicided in 2006 after being bullied at work.

The move extended provisions in Victoria’s Crimes Act 1958 to include behaviour that involves serious bullying. The offence of stalking, and therefore conduct that amounts to serious bullying, carries a maximum penalty of 10 years imprisonment.

Brodie’s Law applies to bullying anywhere in the community, such as workplaces, schools, sporting clubs and on the internet, including email or social networking sites. Bullying can include behaviour such as threats and abusive and offensive words or conduct. Serious bullying may also include conduct or behaviour that is intended, or could reasonably be expected, to cause the victim of the bullying to engage in suicidal thoughts or thoughts or actions that involve self-harm.

Victoria Police clearly outlined the seven components of Brodie’s Law for parents at one of our most recent school panel events on Social Media.

“Brodie’s Law can be facilitated by one or more of these forms of technology including the internet, instant messaging, chat rooms, social network sites and gaming sites by phone, SMS, emails and so forth. One of seven different categories is Flaming or Trolling, which is an argument or a fight between two people.

Harassment, when someone is being tormented with hateful and hurtful text messages, email, posting instant messages that are meant to humiliate or intimidates them. Denigration, when you put someone down and ruining their reputation; making others think less of them.

Impersonation or Trickery, pretending to be another person online to make someone tell you things they wouldn’t normally talk to you about or revealing that someone else is a homosexual. There’s Cyber-Bullying. This might be done through a fake website profile or by somebody editing someone else’s profile.

Exclusion, and I think this is probably one of the main ones for students. Is not letting someone else participate in an online group or excluding them from other activities because they haven’t been online. And you also have Cyber-Stalking, which is following someone through cyberspace. Moving with them through different sites and applications and posting where they post.”

Sexting

In late 2014, Victoria introduced Australia’s first “sexting” laws. They created offences of maliciously distributing or threatening to distribute intimate images of another person, and ensured young people engaging in non-exploitative “sexting” did not end up with criminal records or on the sex offenders’ register.

The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 created two summary offences of “distribution of an intimate image” and “threat to distribute an intimate image” in circumstances contrary to community standards of acceptable conduct. They cover the distribution of images of anyone aged under 18 and the distribution of images of adults without consent.

The distribution offence carries a penalty of up to two years in prison and the new offence of threatening to distribute carries a penalty of up to one year in prison. Exceptions will ensure that those aged under 18 are not inappropriately prosecuted or added to the sex offenders’ register for consensual, non-exploitative sexting. They do not apply if the image depicts a criminal offence such as a sexual assault, or if the person in the image does not consent to it being sent.

Stalking

Since the Victorian Crimes Act (1958) was widened in 2011 to include a range of bullying acts under the offence of stalking, the number of reported offences has risen. The amendments related to actions such as those expecting to cause mental or self-harm, making threats and using abusive or offensive words.

In the 2010 calendar year, Victoria recorded 1615 stalking offences, rising to 1761 in 2011, 2313 in 2013, 2805 in 2013 and 2953 in 2014.

Some of the increase stems from the 2011 “Brodie’s Law” amendments, from increased awareness of bullying and cyber-bullying generally and an increased willingness to report such behaviours. Another key driver is increased reporting and recording of family violence-related stalking offences.

For more information visit www.legalaid.vic.gov.au/findlegal-answers/sex-and-law/sexting-and-child-pornography

New South Wales

New South Wales
In New South Wales and throughout Australia, cyber-bullies may face criminal charges depending on the seriousness of the offence. For example, it is illegal to use mobile phones or the internet in a way that is menacing, harassing or offensive.

Legal Aid NSW says that “menacing” would be threatening to harm someone. Threats are illegal under a number of laws and may be considered assault. (This is a federal crime, so anyone in Australia can be charged with this.)

A “harassing” use would be repeatedly bothering someone. An “offensive” use could include sending or sharing a “sexy pic” or nude photo. If you use your mobile or the internet in a way that is likely to really hurt or anger a typical person, you may be committing a crime. The penalty for menacing, harassing or offensive cyber-bullying is up to three years in jail.

Legal Aid NSW has an under-18s youth hotline: 1800 10 18 10

Queensland

Queensland

Cyber-bullying and sexting are both illegal in Queensland. Cyber-bullying is a crime if it involves using the internet or a mobile phone to make threats, stalk, menace, harass or seriously offend someone. This can include sending offensive messages or making posts that make someone feel extremely angry, outraged, humiliated or disgusted. Threats may include trying to intentionally frighten, intimidate or annoy someone by threatening to hurt them or enter or damage a property,

It is also illegal to create, send, possess or intend to possess images of someone aged 18 or younger (including yourself) who is involved in a sexual activity, in a sexual pose, acting in a sexual way or showing their sexual parts. Sending sexts of people aged 16 and under is considered “child exploitation”, which is a crime.

Those who make, send or possess illegal sexting images to others can be charged with “distributing child-exploitation material”, which carries a penalty of up to seven years in jail for those aged 16 or under, or 14 years in jail for those aged 17 or older.

Anyone aged 10 or over can be charged with a criminal offence for possessing “child exploitation materials”. It is not an office if you were sent sexting images without asking for them and deleted them as soon as you could.

South Australia

South Australia

Cyber-stalking is recognised under stalking in South Australian legislation. However, prosecution is rare.

Cyber-bullying may be considered assault if the bully threatens to physically hurt the victim, and either there is a real possibility that the bully will act or is in a position to act and intends to do so. Cyber-bullying and trolling may also be defamatory.

Stalking has occurred when a person, on at least two occasions follows, loiters near the victim’s home, interferes with their property, sends them offensive material, publishes offensive material, communicates in a way to make them fearful, keeps them under surveillance or acts in another way reasonably expected to cause apprehension or fear.

These acts must intend to cause serious physical or mental harm, serious apprehension or fear. The maximum penalty is three years imprisonment for a basic offence and five for an aggravated offence.

Offensive Behaviour

A person charged with stalking is also taken to have been charged with offensive behaviour; if they are not convicted of stalking they can still be convicted of offensive behaviour.

Sexting

In South Australia, sexting is illegal if it involves the production or dissemination of child-exploitation material, or breaks laws against indecency and offensive or harassing behaviour. The state’s sexting laws are under review.

Tasmania

Tasmania

In Tasmania, cyber-bullying is treated as a complex issue not only requiring a legal framework to address the behaviour but also strong community understanding, education and training to deal with such anti-social behaviours.

Several existing Tasmanian laws address conduct that may constitute bullying. The following provisions apply to online and offline bullying activities, even though they are not specifically classed as anti-bullying laws:

  • Criminal Code Act 1924 (s182-184, 192);
  • Anti-Discrimination Act 1998 (ss16, 17);
  • Work Health and Safety Act 2012 (s19);
  • Workers Rehabilitation And Compensation Act 1988 (s3);
  • Fair Work Act 2009 (unfair dismissal, general protections, and breach of enterprise agreement);
  • Industrial Relations Act 1984 (s29(1A)); and
  • Part XA Justices Act 1959.

The current Tasmanian government has pledged to strengthen these provisions to ensure that all types of bullying are adequately covered. In May, 2014, the Tasmanian Attorney-General asked the Tasmanian Law Reform Institute to investigate the capacity of Tasmanian laws to address bullying, and in particular cyber-bullying. This process is looking at bullying behaviour, how other jurisdictions handle it and whether Tasmanian laws need reform.

Western Australia

Western Australia

In Western Australia, police urge cyber-bullying victims to contact organisations such as the Australian Communications and Media Authority, ThinkUKnow, and ACORN – The Australian Cybercrime Online Reporting Network. All handle complaints about inappropriate online activities.

Sexting is not covered by the criminal code or defined under legislation in Western Australia. As a generic term to describe the act of sending sexually explicit messages or photographs, primarily via mobile phones between adults and teens, sexting between adults is not a criminal offence in WA.

However, sexting involving a child under 16 is covered by offences relating to the production, distribution and possession of child-exploitation material under Chapter 24 of the Criminal Code (WA). These offences are applicable to sexting between children or between a child and an adult. Further electronic communications of a sexual nature, including pictures and live streaming by an adult to the child, attract criminal sanctions under section 204B of the Criminal Code (WA).

Australian Capital Territory

Australian Capital Territory

In the ACT, cyber-stalking is defined as the persistent use of mobile devices and the internet to threaten, intimidate or harass someone. Charges are laid under Section 474.17 of the Criminal Code Act 1995 (Cth) using a Carriage Service to Menace, Harass or Cause Offence.

Offences may include:

  • Text, voice, or other harassment – the sending of threatening or harassing messages, or posting of offensive content;
  • Sexual harassment via digital means (colloquially referred to as “revenge pornography” – the sharing of intimate images without consent); and
  • Unauthorised surveillance through hacking into your accounts or installing spyware on your devices to monitor your activity.
ACT Police tips

  • Check mobile device apps and disable geotagging or location services for those that do not require a physical location. Delete any apps that appear suspicious;
  • Know how to block and report people on the sites, apps and games you use;
  • Know who you are talking to online – think of your safety if you meet someone in person you’ve only spoken to online;
  • Have strong passwords and change them regularly. Avoid recycling passwords for different accounts and change them at least twice a year;
  • Install and maintain security software on your devices;
  • Reconsider having social media “joint accounts”;
  • Avoid unauthorised access to your Wi-Fi by changing the default password on your router; and
  • Think before you send – once you send something digitally, you cannot control where it ends up.

For more preventative and proactive measures visit:
www.staysmartonline.gov.au
www.wesnet.org.au,
www.thinkuknow.org.au

Northern Territory

Northern Territory

The Northern Territory does not have specific cyber-bullying laws. It uses related laws in the Commonwealth Criminal Code Act, which details several possible offences depending on the specific facts of the alleged incident.

They include:

  • Using a carriage service to make a threat (Section 474.15);
  • Using a carriage service for a hoax threat (Section 474.16);
  • Using a carriage service to menace, harass or cause offence (Section 474.17);
  • Using a carriage service for child pornography material (Section 474.19); and
  • Possessing, controlling, producing, supplying or obtaining suicide-related material for use through a carriage service (Section 474.29B).
The following Northern Territory legislation can also be used to proffer a charge relating to cyber-bullying:

  • Threats to Kill (Section 166 of the NT Criminal Code Act);
  • Unlawful Stalking (Section 189 of NT Criminal Code Act); and
  • Offensive Conduct (Section 47 of NT Summary Offences Act).

Northern Territory Police also play a community education and enforcement role around cyber-bullying instances and issues. The NT Police partners with the ThinkUK now Program, which educates parents and caregivers about cyber safety. Youth Engagement Police Officers provide education sessions across the NT via the ThinkUKnow website.

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