201510.27
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Cyber Bullies, the law and you!

cyber-bullyingThere is much talk these days on news media, and online about cyber bullying.

Conferences and debates abound, socially and politically, about cyber bullying, its negative impact on the physical and mental well-being of victims, extreme cyber bullying cases resulting in death by suicide, challenges in policing and inadequacy of consequences and punishment.

Everybody is surfing the internet highway and all manner of products, services and issues are canvassed on the numerous social media platforms like Facebook, Twitter, Instagram and the like, with many more being developed almost weekly.

When you want to express a point of view, ask for advice, share news, find out which is the best blender, you are more likely to go online with a post to Facebook or Twitter than ask someone you know personally.

And so, by putting yourself out there with a profile in any social media you become fair game for cyber bullies.

Who is a cyber bully?

Cyber bullying is commonly known of in the context of school students using technology such as phone texts and Facebook to repeatedly and intentionally bully another student with negative words, images or actions with the intention of causing distress and risk to the person’s wellbeing.

But, anyone can be a cyber bully and anyone can be the victim of a cyber bully.

Cyber bullying is not unique to students, and any perpetrator over the age of 14 can be subjected to legal consequences for bullying behavior, cyber or otherwise.

The Human Rights Commission has identified a number of other types of offensive cyber behavior – cyber racism, cyber sexual harassment, and cyber homophobia – which fall under the umbrella of cyber bullying.

Cyber bullies use technology to harass, intimidate, embarrass or stalk someone else. They can do so by emails, texting, instant messaging, and digital photos, on Facebook, Twitter, Instagram and the like.

Cyber bullies will do any of the following:

• communicate vulgar, aggressive and demeaning messages, making cruel, offensive and insulting comments and remarks, issue threats and false promises
• bully by posting private or embarrassing information including pictures for public viewing
• post and circulate gossip or rumours with the sole purpose of causing damage to victims’ personal and/or business reputation
• hack into internet accounts, pretend to be the victim and post material that will damage friendships and alienate the victim from online groups
• suggest and encourage suicide and self-harm to the victim

Can you really get some legal protection or relief if you are the victim of cyber bullying?

The short answer is yes.

There are a number of criminal laws including those dealing with assault, stalking, harassment, criminal defamation that can apply to cyber bullying behaviour and while there are some differences between states, the legislative provisions are generally similar. Please refer to list below for relevant legislation references.

While there is no specific offense YET for cyber bullying there have been a number of successful prosecutions, for example the Shane Gerada case which was dealt with by Victims of Crime Assistance Tribunal and the Police v Ravshan Usmanov [2011] NSWLC 40.

Both these cases dealt with cyber bullying behaviour.

In the Shane Gerada case, the Victims of Crime Assistance Tribunal ruled that the victim’s death by suicide was caused by cyber bullying behaviour and was captured within the meaning of a violent act and therefore punishable by law.

In the Usamov case, the victim reported the cyber bully (her ex boyfriend) to police for uploading nude photos of the victim to the social media site Facebook.

The court accepted that this technology driven bullying behaviour was likely to have caused the victim embarrassment, humiliation and anxiety at the prospect of people viewing those photos who were known to her and by those who were not known to her on Facebook (see Police v Ravshan Usmanov [2011] NSWLC 40, see paragraph 20 of the remarks on sentencing).

There is work to be done in the area of sentencing for cyber bullying behaviour resulting in prosecution i.e. matching the punishment with the severity of the crime as indicated.

In the Shane Gerada case, for example, the sentence for the cyber bullying crime that resulted in death of the victim might be considered lenient taking into account the severity of the crime and the consequence. Gerada avoided a jail term and was sentenced to an 18‐month community‐based order, which involves 200 hours unpaid community work.

The disparity between the severity of the crime and the apparent leniency of the punishment may be because cyber bullying is complex and reporting and prosecution is relatively recent. Legislation and case law are yet to catch up to deal with the challenging aspects of cyber bullying behaviour and its sentencing.

The complexity of the bullying behaviour is that it occurs online, and not in the physical presence of the victim and yet intrudes and impacts on the victims mental and emotional wellbeing at anytime of day or night and targets the victim specifically in an open and seemingly uncontained public space.

The cyber bully may use different names to hide their true identity or fake their identity to be someone else. It may be hard to provide evidence that a cyber crime has been committed as the process of actually gathering evidence may take a long time.

Although lawmakers are playing catch up with the rapid developments in technology and the unprecedented social and anti-social behaviours these developments have engendered, cyber bullying behaviour can attract criminal prosecution and civil liability for the perpetrator.

Cyber bullying behaviour has many criminal elements as well raising civil duty of care issues depending on when and where the cyber bullying behaviour occurs, for example in the workplace or school environment, that the victim can rely on in seeking protection or a remedy.

What you should do!

cyber bullying

Victims of cyber bullying should stay calm, keep a record of all occurrences of cyber bullying behavior, for example texts, photos, Facebook communications, report the matter to authorities such as police and employers, and seek legal advice.

Australian Laws relevant to cyber bullying

Queensland
Criminal Code 1899 (Qld) section 308 (threats to murder in document) and section 359 (threats).

New South Wales
Crimes Act 1900 (NSW) section 31 and section 199; and Crimes Act 1900 (NSW), as amended by the Crimes Amendment (School Protection) Act 2002 (NSW).

Victoria
Crimes Act 1958 (Vic) section 21A (stalking includes publishing information on the internet or by an e-mail or other electronic communication to relating or purporting to relate to the victim or any other person); section 20 (threat to kill); and section 21 (threats to inflict serious injury).

Tasmania
Criminal Code Act 1924 (TAS) section 163 (threats to kill in writing).

Western Australia
Criminal Code 1913 (WA) (Chapter XXXIIIA — Threats; sections 338A-­‐338C)

ACT
Crimes Act 1900 (ACT) section 30 (threat to kill); and section 31 (threat to inflict grievous bodily harm).

Northern Territory
Criminal Code 1983 (NT) section 166 (threats constituted by words or conduct) and section 200.

South Australia
Criminal Law Consolidation Act 1935 (SA) section 19 (unlawful threats).

Defamation laws
Crimes Act 1900 (ACT) section 439
Crimes Act 1900 (NSW) section 529
Criminal Code 1983 (NT) section 204
Criminal Code 1899 (Qld) section 365
Criminal Law Consolidation Act 1935 (SA) section 257
Criminal Code Act 1924 (Tas) section 196
Wrongs Act 1958 (Vic) section 10
Criminal Code 1913 (WA) section 345

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