Is Cyber Bullying Legislation in NSW Sufficient?

Cyber bullying has been in the spotlight in NSW recently after the death of television personality Charlotte Dawson.

Dawson was a well-known campaigner against cyber bullying, and had been on the receiving end of harassment via social media platforms such as Twitter.

As a sufferer of depression, Dawson campaigned to increase awareness of the impact of online harassment and cyber bullying on mental health, including her own.

Most of the main social media platforms such as Facebook and Twitter have anti-bullying policies in place, but they are not always implemented effectively and users can still post malicious information and threats online.

There are currently no laws in place to allow social media companies to prosecute cyber bullies in NSW, and the anonymity of the internet can make it difficult to track down specific individuals.

There have been a number of calls for specific laws to combat cyber bullying in the wake of Charlotte Dawson’s death.

What laws currently exist?

Due to the nature of the internet, cyber bullying can affect people of all ages around the clock, and can reach them in their homes, when they are out, or when they are at work or school.

Current law in NSW makes cyber bullying an offence only when it is committed on school premises.

The government has been under increasing pressure recently to introduce specific cyber bullying legislation in NSW to make the practice a criminal offence.

While there are currently no specific cyber bullying laws that are aimed at protecting everyone, everywhere, there are laws in place which can be used to prosecute cyber bullies, but they are rarely used.

It has been suggested that, in some cases, police would benefit from more training in how to use the current legislation to more effectively prosecute cyber bullies for harassment, stalking or defamation.

Stalking and harassment

The law regarding stalking lists a number of behaviours which constitute a criminal offence, and many of these activities could fall under the scope of cyber bullying.

Some of the relevant stalking activities include repeatedly leaving messages on social networking sites, sending persistent text messages, and making repeated phone calls.

Doing this repeatedly with the intention of inducing fear or exercising power or control over a person is common in cases of cyber bullying, and it could be classed as stalking in terms of the law.

Harassment is similar to stalking in that it involves repeated behaviour with the intention of causing fear of physical or emotional harm.

This can be done through physical means, or via electronic means such as email and social media.

Defamation

Cyber bullies often post items which are damaging to the victim and their reputation, whether by making false statements about them or posting photographs or other material.

In severe cases, this behaviour could fall into the realm of defamation.

Defamation is when one person publishes or distributes false material about another person, either knowing that it is false or being reckless as to whether it is false or not.

To fall under the scope of defamation, the material has to be such that a reasonable person would think less of the victim after seeing it.

Although it is not very often that individuals face criminal charges for defamation, there have been a number of successful cases where people have sued individuals and organisations for defamation after the posting of false or misleading information.

Misuse of telecommunications services (Commonwealth offence)

The Misuse of Telecommunications Services Act falls under Commonwealth legislation.

This act covers a wide range of different activities, including using a telecommunications carrier or service in a way that could be harassing, offensive or intimidating.

As a telecommunications carrier includes the internet, cyber bullying could be covered under this legislation.

What has been suggested?

Activist organisation Change.org has recently created an online petition to ask the federal and state governments to make more use of existing anti-harassment legislation to prosecute cyber bullies, and to introduce more specific laws against cyber bullying and trolls.

The petition has more than 188,000 supporters so far.

There have also been calls for more accountability from social media platforms such as Twitter and Facebook in monitoring activity and removing those who undertake harassment and cyber bullying activities using their sites.

With the increasing reliance on the internet in everyday life, it’s unlikely that cyber bullying is ever going to go away.

Although there are laws in place which could be used to prosecute those found guilty of online harassment and intimidation, in reality they are not widely used for this purpose, and it remains to be seen whether the NSW and federal governments will take action on specific legislation.