By Zeb Holmes and Ugur Nedim
Section 474.17 of that Act, for example, makes it an offence punishable by up to three years’ imprisonment to use a carriage service (which includes the internet) to menace, harass or cause offence.
The section provides that a person is guilty if he or she uses the internet ‘in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.’
However, in a bid to appear like it is making an effort to combat such conduct, the federal government is proposing to increase the maximum penalty for the offence to five years, in line with the offence of menacing, harassing or causing offence through the transmission of private sexual material under section 474.17A of the Act.
The change is meant to acknowledge the impact of such offences upon victims, and to send a message to would-be offenders that such conduct is treated seriously under the law.
As previously reported, the NSW state government is proposing to amend existing state laws to clarify that offences against stalking and intimidate extend to online conduct.
Premier Gladys Berejiklian and Attorney General Mark Speakman issued a press release titled ‘Tougher laws to combat online abuse’ which states:
“The NSW Government will introduce legislation amending the law to make it clear that the definitions of ‘stalking’ and ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act explicitly includes activities conducted online or via text messages that are designed to instill fear of physical or mental harm.”
The laws against stalking and intimidation are contained in section 13 of the Crimes (Domestic and Personal Violence) Act 2007, which makes it an offence punishable by up to 5 years’ imprisonment and/or a fine of $5,500 for a person to stalk or intimidate another with the intention of causing fear of physical or mental harm.
The section makes clear that:
- The offence covers causing fear of such harm to another with whom a person has a domestic relationship,
- A person intends to cause such a fear if he or she knows the conduct is likely to cause the fear,
- The prosecution does not have to prove that the complainant actually held a fear, and
- A person is guilty if they attempt to cause such a fear.
Section 7 defines intimidation as:
- conduct amounting to harassment or molestation, or
- an approach made to the person by any means, including by telephone, text messaging, e-mailing and other technologically assisted means, or
- any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
It further states that the court can have regard to a pattern of violence when determining whether conduct amounts to intimidation.
Section 8 defines stalking as including the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
Again, a court can consider any pattern of violence when determining whether conduct amounts to stalks.
Victims groups approve
Domestic Violence NSW chief executive Moo Baulch have called the move a positive step forward that will help those trying to escape domestic violence.
“We know up to 98 per cent of victims of family and domestic violence have experienced online abuse – it’s a devastating crime that follows people into their homes,” she said. “It can feel almost inescapable when you’re being stalked, bullied and harassed online.” NSW Police Commissioner Mick Fuller added that the changes will give victims more confidence to come forward.
The laws will also apply to juvenile offenders, but Mr Speakman said incarceration would apply “only in the most extreme circumstances”.
“This is not about protecting people’s injured feelings, this is about protecting people against potentially devastating psychological and tragic consequences,” Mr Speakman emphasised. In this way, it is hoped that the laws will protect against serious harassment while not creeping into issues of legitimate debate or free speech.
Impetus for change
The press releases come after the high-profile suicide of 14-year-old schoolgirl Amy “Dolly” Everett.
Dolly took her own life after experiencing online bullying, inspiring her family to become public figureheads of a push to raise awareness about the serious consequences of bullying and harassment.
Dolly had previously been the face of an Akubra advertising campaign. Before her death, she had reported to her school that she was being relentlessly assaulted and harassed by other students, who had told her to kill herself.
“No one should be abused or feel unsafe online,” Dolly’s parents said in a statement. “We need to educate everyone about how important it is to treat each other with respect. Laws about respect can have an impact if they are part of broader community education, standards and behaviour change.”
But for many, the proposals are too little, too late.
In 2013, the federal government’s Joint Select Committee on Cyber Safety heard that the State Crime Acts should be amended specifically to include criminal charges for making online threats, as is only now being contemplated.
There were further petitions for state governments to make greater use of existing anti-harassment legislation to prosecute cyber bullies, and to introduce more specific laws against cyber bullying and trolls, following the suicide of media personality Charlotte Dawson.
And earlier this year, one lawyer called for new laws to make big tech companies Facebook, Google and Twitter liable for failures to adopt strategies to combat cyberbullying on their platforms.
Only time will tell whether the proposed changes will have an impact on cyberbullying.