Protection from Cyberbullying – rights & remedies

‘Bullying’ is behaviour, whether physical, verbal, psychological or social, that is directed towards a person or group, with the intention to cause harm or fear. When this conduct is carried out using information and communication technology (such as over the internet or via a mobile phone), it is referred to as ‘cyberbullying’.

Depending on the nature, repetition and severity of the behaviour, cyberbullying may constitute a criminal offence.

When is cyberbullying a crime?

Under national laws, the Commonwealth Criminal Code Act 1995 provides that it is an offence to misuse telecommunication services. The ‘use of a carriage service in a way that reasonable persons would regard as being…menacing, harassing or offensive’ is an offence which attracts a penalty of imprisonment for up to three years.

A ‘carriage service’ includes the internet and mobile phone networks.

Consequently, although ‘cyberbullying’ is not specifically defined as an offence under national law, there are various behaviours that could be recognised as an offence, such as using a carriage service to:

• make intentional threats to hurt a person or damage property in circumstances where the threat frightens, intimidates or annoys that person;
• stalk a person – repeated unwanted attention that frightens or intimidates a person, such as unwanted emails, phone calls or text messages;
• menace, harass or seriously offend a person – sending offensive messages or making posts that cause a person to feel anxious, humiliated or disgusted;
• defame a person – publishing / posting false information about somebody else with the intention that it causes serious harm;
• encourage somebody to suicide.

It is also an offence to access another person’s internet account without their consent.

In addition to Commonwealth laws, Australian states and territories have criminal laws that could apply to cyberbullying. These offences generally target stalking, harassment, threatening or intimidating conduct and defamation. Many of these laws were originally aimed towards domestic violence or relationships where there is an imbalance of power, however, in a technological environment, may extend to cyberbullying in certain circumstances.

Various jurisdictions have also introduced, or are in the process of amending or introducing, legislation to target more specific forms of cyberbullying such as the non-consensual sharing of intimate images (or ‘revenge porn’). These laws generally create offences that criminalise the non-consensual recording and threat or actual distribution of intimate images. The terminology and provisions vary between jurisdictions however persons convicted of offences under these laws may face heavy monetary fines and possible prison sentences.

What are your rights if you are cyberbullied?

You have a right to feel safe and not be bullied. There are things that you can do to protect yourself from a cyberbully.

Initially, you could ask the person responsible for the offending material to delete it.

In regard to social media websites, you can usually report bullying posts to the website administrator who will remove offensive material if it violates that website’s terms of use. Also, most social media websites enable you to block someone from contacting you.

If you are receiving bullying phone calls or text messages from someone you may be able to block them from contacting you using your mobile phone settings. You could also complain to your mobile network provider (eg Telstra, Vodafone, TPG or Optus). Your provider may decide to send the cyberbully a warning letter or suspend their phone number or terminate their contract.

If the above does not resolve the problem and you continue to feel that you are being cyberbullied, you should obtain legal advice as soon as possible.

You should keep any evidence of cyberbullying. For example, record the dates and times of any harassing phone calls, or take a screenshot (or print) bullying messages or posts. Your legal adviser can then tell you whether the conduct is likely to be considered criminal. (It also helps prove who was the source of the bullying and its exact nature.)

In the first instance, your legal adviser may decide to write to the person or people involved telling them that their actions could be a crime and letting them know that you will consider going to the police if they do not desist in their conduct. Often, the issue of a letter from a law firm which sets out the potentially criminal nature of the conduct may prompt a perpetrator to re-think his or her actions.

Remedies for cyberbullying

When cyberbullying involves making comments about you or posting pictures which damage your reputation, you may be able to sue the cyberbully for defamation or take other legal action against the cyberbully to obtain an award of damages. You should obtain legal advice if you wish to pursue these actions.

If you are cyberbullied by way of unwelcome sexual attention, sexual threats or discriminatory comments made by someone at your workplace or educational institution, you may be able to complain to your state or territory anti-discrimination body or the Australian Human Rights Commission.

Consequences of cyberbullying

The consequences of cyberbullying can be very serious. In addition to possible criminal charges being laid, a cyberbully may need to answer to claims for compensation and / or defamation.

In addition to phone network providers and website administrators suspending or cancelling a user’s account, they may decide to report that user to the police.

Most education providers and workplaces have anti-bullying policies in place to deal with cyberbullying. Cyberbully workers or students may be dismissed, suspended or expelled.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.