Is Cyberbullying a Crime in Australia? Understanding the Laws to Protect Yourself Online

What is Cyberbullying and what does it look like?

Cyberbullying involves using technology and digital devices such as mobile phones, computers, and tablets as mediums to inflict physical or mental harm upon others. Cyber bullies can be a stranger, a former friend, a colleague or even someone close to you. Regardless of who they are, cyber bullies often use social media platforms, SMS or other text messaging apps, instant messaging, internet forums, message boards, email, online gaming communities, and other applications where people can view, engage with, or post online content.

Some of the most common forms of cyber bullying include:

• sending hurtful messages or emails
• creating fake profiles to impersonate someone
• spreading false rumours and false accusations through online posts
• making rude comments on social media sites
• unauthorised access to your account to spread fake posts or harmful content
• sharing explicit or violent images or videos of someone
• engaging in online exclusion, deliberately leaving others out

In certain cases, cyberbullying may extend beyond acceptable boundaries and even violate criminal law. Whatever form it takes, cyber bullying can cause serious harm to its victims, which can lead to depression, low self-esteem, and withdrawal from society altogether. In the worst cases, it may even cause the victim to commit suicide.

Australian Capital Territory (ACT)

Crimes Act 1900 (ACT)

• Section 35 (2)

(f) Using electronic messaging, phone calls, e-mails and other means of communication to stalk, harass or threaten another person

(g) Sends electronic messages to share the person's information with someone else without their consent

(h) Makes the electronic messages accessible or visible to anyone who may come across it

• Section 72B

Sending, supplying, showing, exhibiting, transmitting, or distributing an intimate image of another person by electronic, digital or any other means without the person's consent.

New South Wales (NSW)

Crimes Act 1900 (NSW)

• Section 31C

Under Section 31C of the Crimes Act 1900 NSW, a person is deemed guilty of a criminal offence if they incite or counsel someone to commit suicide, and as a direct result, that person does commit or attempt to commit suicide.

For this offence, the maximum penalty that can be imposed is 5 years imprisonment. Similar provisions can be found in the legislation of other states where perpetrators who are involved in cyberbullying may also take accountability from mobile or online service providers, websites, schools, or non-penal courts.

• Section 308H

Under Section 308H, a person who causes any unauthorised access to or modification of restricted data held in computer is guilty of an offence. Such an offence carries a maximum penalty of 2 years imprisonment. In this section, "restricted data" refers to computer-stored data that is protected by an access control system linked to a specific function of the computer.'

• Section 529

Under Section 529, a person who knowingly publishes false information about another person with the purpose of causing harm is deemed for a criminal offense that carries a maximum penalty of 3 years imprisonment.

Cyber bullying can lead to legal action through criminal defamation or civil defamation. Criminal defamation involves pursuing legal recourse for harmful statements made online, while civil defamation offers victims an alternative route to seek compensation for the reputational damage caused.

If a person experiences humiliation, ridicule, or disrespect as a result of certain comments or photos posted about them on social media, they might have the option to file a defamation lawsuit against the individuals responsible. This legal course of action can involve all those who participated in spreading the defamatory content.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

• Section 13

Under Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), stalking or intimidating an individual with the intent to instill fear of physical or mental harm is considered a criminal offence in Australia. This offence covers various forms of technology, including the use of phones, email, and social media, to stalk or intimidate someone. The maximum penalty for this specific offence is imprisonment for up to 5 years.

Victoria (VIC)

Crimes Act 1958

• Section 21A

(2)(b) Using postal mail, phone calls, fax, text message, e-mail, or any electronic telecommunication device, as well as through any other possible means to contact, stalk, harass, intimidate, and threaten another person.

(2)(ba) Posting statements or other material related to the victim or any other person on the Internet, via email, or through any form of electronic communication. This includes content that appears to be connected to, or coming from, the victim or any other person.

Queensland (QLD)

Criminal Code Act 1899

• Section 359b (Unlawful stalking)

(c)(ii) Unlawfully stalking an individual by repeatedly contacting him or her through telephone, mail, fax, email, or by utilising any form of technology.

Western Australia (WA)

Criminal Code Act Compilation Act 1913

• Section 204B

Using electronic communication to intentionally harass and expose a child under the age of 16 to indecent content such as indecent images, videos, audiotape, and the like. This may also include threatening an individual to engage in sexual activity.

South Australia (SA)

Criminal Law Consolidation Act 1935

• Section 19AA

(iva) Disseminating cyber bullying content through the internet or any electronic communication medium with the intent of making it accessible or known to another person.

(ivb) Engaging in communication, whether through mail, telephone (including associated technology), facsimile transmission, the internet, or any other electronic communication means, with the intent to instill apprehension or fear to the other person.

Tasmania (TAS)

Criminal Code Act 1924

• Section 192

(g) Publishing or transmitting offensive material, whether electronically or through any other means, in a manner that is likely to be discovered or brought to the attention of either the other person or a third party.

(h) Using the internet or any other electronic telecommunication device to intentionally threaten and cause another person to fear physical or mental harm or extreme humiliation.

(i) Contacting the other person or a third party through postal services, telephonic means, electronic communication channels, or any other form of communication.

Northern Territory (NT)

Criminal Code Act 1983

• Section 208AA

(a) Sending, supplying, or publishing an image of a person to another individual whether manual, electronic, digital, or any other means.

(b) Making the image available for viewing or access by another person.

Criminal Code Act 1995

The bill is applicable across the entire states and territories of Australia, carrying various offences aimed at prohibiting the dissemination and hosting of abusive content on the internet.

• Section 474.15(1)

Using a carriage service such as the internet, telephone, and other telecommunication networks to threaten to kill someone. Such an offence carries a penalty of 10 years imprisonment.

• Section 474.15(2)

Using a carriage service such as the internet, telephone, and other telecommunication networks to cause serious harm to someone. Such an offence carries a penalty of 7 years imprisonment.

• Section 474.17

Using a carriage service to menace, harass or cause offence to someone. Such an offence carries a penalty of 5 years imprisonment.

• Section 474.22

Using a carriage service for child abuse material. This includes sending, providing access to, publishing, disseminating, advertising, promoting, or requesting child abuse material. Such an offence carries a penalty of 15 years imprisonment.

• Section 474.33

If an internet service provider, content service, or hosting service is aware that the service they provide can be utilised to access inappropriate material that they have reasonable grounds to believe captures or streams abhorrent and violent conduct taking place in Australia. Such an offence carries 800 penalty units.

• Section 474.34

If a content service enables access to cyberbullying material that is deemed abhorrent and violent, and the person responsible for the service fails to promptly remove such material, they are in violation of their obligations.

What is the law on online abuse in Australia?

While there is no particular law in Australia that deals directly with online abuse and bullying, some relevant laws may address violations of civil or criminal law through stalking, intimidation or harassment. Hence, criminal penalties may also apply depending on the severity of the offence.



Online Safety Act 2021 is a new legislation that expands Australia's current legal framework for promoting internet safety. It aims to protect the safety and privacy of individuals who use social media service. It informs users about their rights and responsibilities in terms of their online activities and it provides access to necessary resources so they can make informed decisions regarding their security. Significantly, this bill would also establish regulations for certain online platforms to reduce the risk of cyberbullying.

Can you do anything about online harassment?

While the use of online content is growing rapidly in today's digital age, there are a few steps that you can take to protect yourself and your reputation from online harassment.



• Do not disclose any of your personal information, such as passwords, name, address, and phone numbers to anyone, especially to strangers. This also extends to sharing your photos as well as your friends and family members.
• Do not respond to messages when you are in a refute with someone. Instead, log out of your account and stop messaging if you sense any form of harassment.
• You have the option to block, delete, and report individuals who are harassing you online.
• Know the steps for reporting harassment and bullying across the different social media sites you use.
• Keep a record of calls, messages, posts, and emails that could be hurtful or detrimental to your well-being.
• Customise the privacy settings on your social networking platforms to ensure your comfort and security.

Takeaway

Cyberbullying is a serious problem that has been impacting Australia for many years and continues to be an issue today. As the laws and regulations surrounding it differ from one state to another, you must familiarise yourself with each of these laws so you can prepare yourself against potential cases of cyberbullying.



In the event that you have been accused of cyberbullying, it is advised that you seek legal advice from trusted criminal lawyers to ensure that you are not violating any laws. While you may not be criminally charged, particularly with a cyber bullying offence, you can be held liable for civil claims, such as defamation or other forms of harassment that are under a different law. To get reliable legal advice, contact us today at Andrew Byrnes Law Group and find out how we can help you defend yourself against cyberbullying claims.