Cyber harassment, cyber stalking and cyber bullying: the offences and penalties

Note: If an individual is exposed to cyber bullying, cyber stalking and/or cyber harassment the matter should be reported to NSW Police.

The Laws

Cyber bullying, cyber stalking and cyber harassment has increased in focus due to technological advancements and the ease of anonymity on the internet. Since 2015 all NSW police offices have been trained in how to investigate cybercrime.

There are numerous laws that criminalise cyber bullying, cyber stalking and cyber harassment. A selection of these offences are as follows:

1. Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) it is an offence to stalk or intimidate another with intent to cause fear of physical or mental harm. The maximum penalty is imprisonment for 5 years or a fine of $5,500 penalty units, or both.
2. Under the Criminal Code Act 1995 (Cth) it is an offence to use a carriage service to make a threat to kill (maximum penalty 10 years imprisonment) or cause serious harm (maximum penalty 7 years imprisonment);
3. Under the Criminal Code Act 1995 (Cth) it is an offence to use a carriage service to menace, harass or cause offence. The maximum penalty is 3 years imprisonment;
4. Under the Criminal Code Act 1995 (Cth) it is an offence to access a computer or access or modify data without permission. The maximum penalty is 3 years imprisonment;
5. Under the Crimes Act (NSW) it is an offence to publish indecent articles (i.e posting pictures) of an ex-partner on social media. The maximum penalty is a fine of up to $11,000 or imprisonment for 12 months (or both).

Cyber Stalking

Cyber stalking is one of many forms of stalking. Under the Crime (Domestic and Personal Violence) Act 2007 (NSW), stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any activity.

Stalking involves a persistent course of conduct by a person which are intended to maintain contact with, or exercise power and control over another person. Staking can include:

1. phone calls
2. text messages
3. messages left on social networking sites (Twitter, Facebook, etc)

Cyber Bullying & Harassment

Charges for intimidation will often be accompanied by an application for an Apprehended Personal Violence Order.

Commonwealth law criminalises cyber bullying and cyber harassment, but does not provide for a general offence for them. The Commonwealth Criminal Code, provides for an offence of ‘using a carriage service to menace, harass or cause offence’ and ‘using a carriage service to make a threat’. These sections below capture conduct amounting to bullying and harassment, for example, via the Internet, including social media, and telephone.

Posting offensive pictures and comments on Facebook tribute pages

In R v Hampson [2011] QCA 132, the District Court at Brisbane sentenced a man (Mr Hampson) who posted a number of offensive pictures and comments on the Facebook tribute pages to several dead or missing children. He was sentenced to 3 years imprisonment with release after 12 months. On appeal that sentence was amended to 2 years imprisonment and an Order that he be released after serving 290 days in custody upon entering into a recognisance in the sum of $1,000 conditioned on his being of good behaviour for 2 years.

Posting menacing messages on Facebook

In Agostino v Cleaves [2010] ATSC 19 the ACT Magistrates Court sentenced a man (Mr Agostino) in relation to a charge that he used the Internet in a way that a reasonable person would regard as menacing. He was sentenced to 6 months imprisonment for sending threatening messages on Facebook, including threats to kill the victim and his family after the victim commenced a relationship with a former partner of Mr Agostino.

Sending repeated menacing emails

In R v Ogawa [2009] QCA 307 the Supreme Court of Queensland upheld an appeal from the District Court of Queensland who convicted a woman (Ms Ogawa) on the verdict of a jury of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat.

Ms Ogawa was sentenced to 6 months imprisonment on each charge to be served concurrently with Ms Ogawa to be released after having served 4 months upon giving security by recognisance in the sum of $1,000 on condition that she be of good behaviour for a period of 2 years.

The offences occurred between 13 April 2006 and 19 May 2006 and saw Ms Ogawa threaten to kill a barrister and Associate to the Chief Justice of the Federal Court and two Federal Court registrars with whom she had previously dealt with and was currently dealing with. Ms Ogawa made 176 phone calls between 13 April and 19 May 2006 and sent 83 emails during an 18 hour period on 13 and 14 April 2006 to various email addresses at the Federal Court of Australia.

Prosecutions

Between the commencement of the relevant Commonwealth provision in 2005, and January 2014, there were 308 successful prosecutions under the Commonwealth Criminal Code including 8 prosecutions involving defendants under the age of 18.