The Law on Cyber Bullying and Trolling
By Brenda van Rensburg
Over the past couple years, we have seen a rise in both cyber bullying and trolling. According to ‘NIH’, cyberbullies are hidden behind a screen and thus have little remorse for their victim.[1] Unfortunately, many of us has been on the receiving end of a person with malicious intent. Is there legal recourse for someone who has been on the receiving end of a troll or cyber bully? This article will compare a Troll to a Cyber Bully and discuss some legal approaches for both.
It is important to recognize a cyberbully from a troll. The reason is that you can quickly identify one from the other and apply some recourse. From a broad view, cyberbullying and trolling have no significant difference. In both cases, the initiator purposely uses an online medium to create a negative response. However, when you apply a narrower interpretation you will find that the cyber bully’s goal is focused on intent to create harm whereas the latter has intent to disrupt a community with negative commentary.
Trolls are attention seekers.[2] Their goal is to turn a ‘commentary piece’ onto themselves by creating provocative comments. The more attention they receive from a site, blog, or post, the happier the troll. In short, they are a nuisance to a community.
Cyberbullies prefer to target a person or persons.[3] Their intent is to intimate, shame, and harm their victim. They prefer to ‘hide’ in the cyber space and do not like any attention drawn to them. They generally have a ‘sudo-name’ and will post photos, videos or extremely ‘mean-spirited’ messages about an individual. All a cyberbully wants is to distress their victim possibly into suicide. According to Frontiers in Psychology, there is a high percentage of cyberbullies in schools.[4] However, anyone can become the victim.
LEGISLATION
The term cyberbully is not defined within an Australian statute. However, this does not mean that cyberbullies are not ‘dealt with’ by the law. Cyberbullies can be convicted under several piece of legislation and many are being convicted.
One of the most asked questions is whether a cyber bully can be convicted? If you think about it, a cyberbully is an ‘online assault’. However, can you convict a cyberbully under Assault? The elements to convict under assault (WA Criminal Code Act) is:
- Force – Applied or Threatened
- Without Consent
- Intention
- Unlawful
Unfortunately, the first element may be challenge as the statue states that “A person who strikes, touches, or moves, or other otherwise applied force of any kind to the person of another, either indirectly or directly…’[5] The argument is challenged on the fact that force was not necessary applied. It is generally the victim that applies a force to themselves. Naturally, you could look at ‘Threats’ as expressed by the cyberbully. However, the elements of s. 338(a) is ‘a threat to kill, injure, endanger or harm any person’. Threatening to expose several videos or photos online does not satisfy any of these elements.
In 2013 a person aged between 19 and 21 (the crime was committed over time) was convicted of cyberbullying under the Criminal Code Act (WA) s. 204: ‘Indecent act with intent to offend’.[6] The respondent (the person who committed the crime) was charged for offending five girls aged between 13 and 15 years. The respondent threatened girls, unwillingly, into ‘sexual acts.’. Things escalated whereby the respondent threatened to share video footage if they did not do as he said. Notably the federal police were brought in, the perpetrator was convicted, an appeal was made, and the appeal was dismissed.[7]
So how do we legally tackle a cyberbully who believes they are invincible to the law? Cyberbullying, generally, uses mobile phones, emails or even social media sites. To harass or abuse a person, or group of people, could be a criminal offence under the following pieces of legislation.
- Menace, harass or cause offence using the internet: Criminal Code Act 1995 (Cth) s. 474.17: ‘Using a telecommunications network with intention to commit a serious offence’.[8]
- Intimidating or Threating Conduct: Criminal Code Act 1995 (Cth) s 474.15: ‘Using a carriage service to make a threat’.[9]
- For Sexual Threats and Intimidation: Criminal Code Act 1995 (Cth) s.474.17(A): ‘Aggravated offences involving private sexual material—using a carriage service to menace, harass or cause offence.’[10]
- To encourage suicide: Criminal Code Act 1995 (Cth) s. 474.29(A): ‘Using a carriage service for suicide related material’.[11]
AUSTRALIAN STATES AND BULLIES
Some Australian states are making huge strides when it comes to Cyber Bullying, especially within schools. An argument has been raised on whether schools should be held responsible for the actions of children online as extension to ‘Duty of Care’.[12] However, setting the ‘precedent’ so to speak is New South Wales who have amended their Criminal Code to accommodate suicide.[13]
According the Crimes Act 1900 (NSW) s 60E, Assaults etc at schools: ‘A person who by any means… (b) is reckless as to causing actual bodily harm to that student or member of staff or any other person’.[14] The person is ‘the student or member of staff is attending a school’. A person can receive up to 12 years imprisonment.
WHAT TO DO
Cyberbullying can be tried under the criminal code. However, by the time it reaches court the effect of the bullying which could have resulted in horrific ending to a victim. Notably, what will follow is a series of discussion within government about online crime. Until formal legislation is introduced, other than sections of legislation which can be applied now, there will be many more victims with many more perpetrators escaping the law.
The first step, however, is to recognize the perpetrator. Is this person a Troll or a Cyber Bully? Remember, a troll is focused on themselves. They will normally post comments on a post to initiate negative action. Things you can do is to not engage with their comment, delete their comments, or notify administration of the site that you are experiencing menacing behaviour.
A Cyber Bully, on the other had is much more sinister. If you feel you are being cyber bullied, you should seek advice either from the police or a lawyer. Being threatened or ‘assaulted’ online, is not acceptable, no matter the age of the individual. Notably, there are several contentious factors that could come into play which a lawyer could help you navigate through. Arming up with the law is possible one of the best defences against a cyber bully and a troll.[15] However, it is important to know that parents and children should not feel helpless, alienated or intimidated by a cyber bully. There are a number of sites you can turn to for help such as the ‘Kids Helpline” (www.kidshelpline.com.au).[16] Alternatively, you can also ask your local police for guidance. Or, you can seek the guidance of a lawyer. But, whatever you do, NEVER deal with a cyberbully by yourself.
About the Author
Brenda is the head of Data Security for Terrene Global and international keynote speaker. Her experience across a spectrum of industries from Legal, Financial to Resources has given her an in-depth knowledge of how to relate corporate governance, enterprise risk management and cyber & data security management to directors, C-level executives, and all employees within organizations. She is currently completing her law degree to compliment her technology skills so that she can add value to current, and future, issues facing our community and legal industry.
[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4276384/
[2] https://itstillworks.com/difference-between-troll-cyberbully-5054.html
[3] https://itstillworks.com/difference-between-troll-cyberbully-5054.html
[4] https://www.frontiersin.org/articles/10.3389/fpsyg.2018.00367/full
[5] https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a196.html
[6] https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a196.html
[7] R v Leask [2013] WASCA 243.
[8] Criminal Code Act 1995 (Cth) s. 474.17.
[9] Ibid at 474.15
[10] Ibid at 474.17(A)
[11] Ibid at 474.29(A)
[12] Eva English, Liability for bullying: Holding schools accountable, 19 Tort L Rev 41.
[13] https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/dolly-law.aspx
[14] Crimes Act 1900 (NSW) s 60E (3)(b)
[15] https://www.abc.net.au/news/2018-10-07/online-trolls-and-cyberbullies-in-nsw-face-tougher-new-laws/10348246
[16] https://kidshelpline.com.au/teens/issues/bullying
