Cyber bullying and technology-facilitated offences like fraud, identity theft and hacking have been highlighted in the media recently with concerns being raised that there is no specific legislation to address these emerging issues.
As technology increases, so does the potential for people to become victims of technology-related crime and harassment over the internet, but does this mean we need new technology laws in NSW, or better application of the laws we currently have?
Current legislation does have a provision for technology-based crime, particularly harassment to be dealt with, but these laws are not often applied to cases of cyber bullying and harassment.
With the recent high profile death of Charlotte Dawson, who was a victim of online bullying, there have been plenty of calls to toughen up the legislation and make cyber bullying a specific offence.
What technology laws currently exist in NSW?
There are a number of laws in NSW which deal with technology-related crime.
There are specific cyber bullying laws which are intended to protect children from cyber bullying in schools.
This legislation, which is listed under section 60E of the Crimes Act 1900 makes it a criminal offence for anyone to harass, intimidate, stalk or assault a student or member of staff while they are at school.
Other cases of cyber bullying can be dealt with using the Misuse of Telecommunications Service offence.
Under the Commonwealth Criminal Code Act 1995, it is a federal offence to misuse a telecommunications service.
A telecommunications service can mean a telephone or a computer, and the definition of misuse includes using it in a manner that a reasonable person would consider offensive, menacing or harassing.
Misuse of Telecommunications Service offences attract harsh penalties, including prison sentences of up to ten years.
As well as Misuse of Telecommunications Service offences, there are stalking and harassment laws which can be as equally applied to cyber stalking and online harassment as to physical harassment.
For a conviction of stalking or harassment to take place, it has to be proven that the accused intended their victim to fear violence or harm, either physical or mental.
What about cybercrime and cyber fraud?
There are a number of different fraud offences which can be used to prosecute cyber fraud. There are also laws governing other types of cybercrime.
In 2012, the Cybercrime Legislation Amendment Bill was passed which forces internet service providers and carriers to keep stored communications if requested by law enforcement authorities.
Although under this legislation police are required to obtain a warrant before monitoring online data, there have been a number of privacy concerns raised around the access of foreign authorities to this information, as well as who would be targeted and why.
So do we need new technology laws?
Cybercrime in Australia is growing and changing at a rapid rate, and it is difficult to predict what legislation will be introduced in the future.
It is fair to say that the internet has become an integral part of daily life for most people, and that legislation in many cases has not yet caught up to the changes.
But there are also concerns about legislation which is being introduced to allow police more access to personal internet data and records in a bid to catch cyber criminals.
If not regulated sufficiently, this access has the potential to lead to an invasion of privacy and an infringement of civil liberties.
If you have been accused of a technology-related crime, it’s important that you seek legal advice from a lawyer with experience in defending similar matters.
Technology legislation is a complicated area of the law, and unfortunately the laws are often misapplied by police, which can lead to inconsistent charges and an unfair outcome.