“Bullying” is behaviour, repeated more than once, which is intended to hurt a targeted person or group of people, which embarrasses, threatens, humiliates or intimidates that person or persons.
“Cyberbullying” is the act of harassing, abusing or harming another or others using information and communication technology (ie internet and mobile phone) in a repeated and deliberate manner. Depending on its nature, repetition and severity it can constitute a criminal offence.
When is cyberbullying a crime?
Cyberbullying could constitute a crime under NSW law or National law when it involves one of more of the following situations:
- Intended threats, harassment or intimidation through phone calls, texts message, emails or online posts.
- Stalking (ie a person receives repeated attention that frightens or intimidates them (includes unwanted emails, phone calls, text messages, or messages made on social media websites).
- Encouraging someone to suicide.
- Defamation (ie where a person knowingly publishes false information about someone else intending that it causes serious harm).
- Use of the internet or a phone in a threatening, harassing or offensive way.
- Accessing another person’s internet account without their consent.
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.
You could also 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 by using certain settings on your phone. You could also complain to your phone 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 evidence of the 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 the exact nature of the bullying.) 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.
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 another legal action against the cyberbully to obtain an award of damages. You should obtain legal advice if you wish to pursue these legal 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 the NSW Anti-Discrimination Board or the Australian Human Rights Commission. You should seek legal advice about how best to do this.
Consequences of cyberbullying
If someone cyberbullies another or others the consequences can be very serious.
Phone network providers and website administrators, apart from suspending or cancelling the user’s account may decide to report that user to the police.
Most education providers and workplaces have anti-bullying measures in place to deal with cyberbullying. Cyberbully workers or students can be dismissed, suspended or expelled.
In more serious cases, a cyberbully can be convicted of a criminal offence. For example, stalking is a crime if the person doing it intends to cause fear of physical or mental harm through unwanted calls or messages. The maximum penalty is 5 years’ imprisonment and a $5500 fine. If someone uses a phone to threaten to kill, to threaten serious harm or to menace, harass or offend another it is a criminal offence under NSW law (as well as National law). The maximum penalties for this type of offence ranges from 3 to 10 years’ imprisonment. Cyberbullying amounting to criminal defamation carries a 3 year maximum imprisonment term.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].