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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:
Example 1:
A man was charged with several counts of stalking a public figure
via Instagram, and for breaching bail conditions. The man contacted
the public figure more than 100 times via Instagram, email, text
messages, voicemail, and sent pictures of himself. It was alleged
that he was motivated by a desire to form a sexual relationship
with her.
Example 2:
Several years after leaving a religious group, a woman began
receiving a barrage of abusive, manipulative and threatening text
messages, with the abuse spanning more than a decade. The person
stalking used every social media platform available to send
messages to their victim and would create new accounts when
blocked. The person stalking sent messages threatening suicide, as
well as messages imploring the victim to self-harm.
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.
Footnotes
1S 474.17 Commonwealth Criminal Code.
2S 474.17A(1) Commonwealth Criminal Code.
3S 21A Crimes Act 1958.
4S 6A Crimes Act 1958 (Vic).
5S 6B Crimes Act 1958 (Vic).
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