The NSW Crimes Act: Computer Offences and Cyber Bullying

With the proliferation of new technology, computer crime in Australia is increasing both in scope and complexity.

Most people regularly use a computer and mobile phone along with email and social media, and are exposed to the online world on an ongoing basis. It is difficult to avoid being online, but along with the benefits and convenience of the internet, we are also potentially at risk from a number of threats, including computer hacking, software viruses, loss of data, and identity theft. Children in particular are often at greater risk from their online activities, with cyber bullying one of the key concerns.

What is cyber bullying?

ReachOut Australia defines cyber-bullying as “any kind of bullying or harassment done using technology”.

Cyber bullying can include private or public harassment, and negative comments. Social media can be particularly damaging when used for the purposes of victimisation, and posts can also be extremely difficult to remove from sites. Although many social media sites ban bullying, they currently do not have the legal recourse to be able to use cyber bullying as grounds for prosecution.

What action can victims take?

In some cases, victims of cyber bullying in NSW may have recourse under the Crimes Act. Computer offences like cyber bullying are not specifically legislated in NSW, but the state is the only jurisdiction in Australia to address the issue of bullying in schools in a section of the Crimes Act, under which cyber bullying would also fall.

Under section 60E of the Crimes Act 1900, it is an offence for a person to assault, stalk, harass or intimidate any staff member or student while they are at school.

Although this section only applies to bullying carried out on school premises, it is a criminal offence in NSW to stalk someone, or use the internet or a mobile phone in a way that is offensive, harassing or menacing, all of which could apply to cyber bullying.

Does the law go far enough?

With concerns that current legislation does not adequately address computer crimes such as cyber bullying, it has been recommended that the Crimes Act be amended.

The Communications Law Centre at the University of Technology (Sydney) made a submission to the federal government’s Joint Select Committee on Cyber Safety in 2013, which included a number of recommendations for increasing cyber safety for children in particular.

• Recommendations from the Executive Summary of the submission included:Increased services to educate parents on the methods by which children interact, socialise and network over the internet and mobile phones. It is suggested that this increased awareness by parents could help them discuss cyber bullying issues with their children more effectively.
• Further support to be provided to the Australian Communications and Media Authority (ACMA) to create cyber safety and cyber awareness programs for schools, teachers, parents and the community at large.
• The State Crimes Act (NSW) should be amended specifically to include criminal charges for making online threats.
• Government bodies such as the ACMA intensify their discussions with leading global social networking sites to form a ‘code of practice and administration’ in which networking sites would act independently as well as in conjunction with their users to remove bullying content.

The UTS paper also states: “The opportunities for criminal acts in digital environments will continue to increase as the internet further becomes intertwined with the everyday lives of adults as well as children. In the case of cyber-bullying, Australian legislation should provide clear and adequate recourse for victims.”

The first national Bullying, Young People and the Law Symposium was held in July 2013, and also recommended a number of strategies to address bullying, including cyber bullying. Law enforcement and educational experts from throughout Australia and New Zealand attended the symposium, and although their recommendations have not yet passed into legislation, they included:

• Education.
• Appropriate responses by organisations to incidences of bullying and cyber bullying.
• The establishment of a national digital communication tribunal.
• The creation of an appropriate legal framework to address bullying and cyber bullying.

Much has already been done to address the issue, including anti-bullying programs in place at all NSW schools and the creation of a number of helpful resources. But with young people living so much of their lives online in today’s society, cyber bullying is not going to go away, and continued action will be needed.

Anyone who is the victim of cyber bullying, or who has been accused of cyber bullying, should consider consulting a criminal lawyer for help and guidance. A good lawyer can help you to win your case and avoid a criminal record.