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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Cyber bullying (WA)


Cyber bullying is bullying done online or over the phone, using texts, phone calls, instant messages, chat, social media or webpages. In Western Australia there are no specific laws on cyber bullying but the state’s Criminal Code and the Commonwealth Criminal Code contains laws that are relevant to cyber bullying.

Cyber bullying behaviour

Cyber bullying can take many forms, including:

  • abusive texts and emails;
  • hurtful messages, images or videos;
  • imitating, excluding or humiliating others online;
  • spreading damaging gossip online;
  • creating fake accounts to trick or humiliate someone.

Cyber bullying can have serious consequences. Effects on the victim include anger, embarrassment, fear, loss of confidence, loss of self-esteem and depression. The perpetrator could incur criminal penalties and/or receive a criminal record.

Criminal offences

There are several offences listed under the Commonwealth Criminal Code Act 1995 that are relevant to cyber bullying.

Section 474.14 states it is an offence to use a telecommunications network with an intention to commit a serious offence. If a person is convicted, they face a penalty up to the penalty that applies to the serious offence.

Section 474.15 states it is an offence to use a carriage service to make a threat. If a person threatens to kill another person, the maximum penalty is imprisonment for 10 years. If the threat is to cause serious harm to another, the maximum penalty is imprisonment for 7 years. To be guilty of the offence, the person who issues the threat must intend the recipient to fear the threat will be carried out, but it is not necessary to prove the recipient actually feared the threat would be carried out.

Section 474.16 states it is an offence to use a carriage service to make a hoax threat. The offence is committed when a person uses the carriage service to send a communication that intends to induce a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left at a place. The maximum penalty is imprisonment for 10 years.

Menace, harass, or cause offence

Section 474.17 states it is an offence to use a carriage service to menace, harass or cause offence. If a person uses a carriage service in a way (whether by the method of use, or the content of a communication or both) that a reasonable person would regard as menacing, harassing or offensive, the maximum penalty is imprisonment for 3 years.

The maximum penalty increases to imprisonment for 5 years is the offence is an aggravated offence. This when the offence involves the “transmission, making available, publication, distribution, advertisement or promotion” of material that is of a private sexual nature.

No definition is provided for what constitutes “menace, harass or cause offence”, but court cases have shown this is determined by community standards and common sense, and the term implies a serious potential effect on the victim’s emotional wellbeing.

Suicide-related material

Section 474.29A states it is an offence to use a carriage service for suicide-related material. A person commits the offence if they use a carriage service to:

  • access material;
  • cause material to be transmitted to a person;
  • transmit material;
  • make material available; publish or otherwise distribute material;

and that material directly or indirectly advises or incites committing to attempting to commit suicide, and the person intends to use the material for this purpose, or intends that it be used by someone else for this purpose. The maximum penalty is 1000 penalty units ($22,000).

Stalking

There are several offences listed under WA’s Criminal Code Act Compilation Act 1913 that are relevant to cyber bullying.

Section 338E makes stalking an offence, stating a person who “pursues another person with intent to intimidate” that person or another person is guilty of the offence.

It defines “intimidate” as to:

  • cause physical or mental harm;
  • cause apprehension or fear;
  • the prevent a person from doing an act they are lawfully entitled to do, or hinder the person in doing such an act;
  • compel the person to do an act they are lawfully entitled to abstain from doing.

It defines “pursue” as to:

  • repeatedly communicate with a person, directly or directly, in words or otherwise;
  • repeatedly follow the person;
  • repeatedly cause the person to receive unsolicited items;
  • to watch or beset the person’s home or workplace.

Stalking carries a 3-year jail term. If the stalking involves a weapon or a breach of bail, the offence is aggravated and carries an 8-year jail term.

Defamation

Section 345 of the Act makes defamation an offence. A person is guilty of the offence if they publish defamatory information about a living person, knowing the information is false or are reckless about whether it is true or false, and they do this intending to cause harm to the person or are reckless about causing harm. The maximum penalty is imprisonment for 3 years.

Reporting

In WA, cyber bullying can be reported to police or the Office of the eSafety Commissioner. The commissioner can investigate serious cyber bullying and help victims have content removed from the internet.

For advice or representation in any legal matter, please contact Armstrong Lawyers.

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