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Cyber Bullying

I have been asked by many of my friend’s children to be their Facebook friend. I usually say yes, and then I take the opportunity to talk to my friends about how they are monitoring their children’s social media presence(s). Most often, the conversation is centered on either cyber bullying, or the posting of inappropriate content. Many of my friends worry about what to do if their child is the victim of cyber bullying, but not many of them talk about what the consequences could be, if their child was the cyber bully.

Recently, I read an article about how social media may change the law in 2012. One area that is most in need of development are the laws that protect people, all people, not just children, from cyber bullies, and provides redress for those who find themselves victims of this crime (and here I refer to it in the moral sense and well as the legal sense).

Cyber bullying is using any form of electronic communication to harass, embarrass, intimidate, or terrorise another person by means of threats, sexual remarks, pejorative labels (hate speech), ridicule, false statements or disclosure of personal data.

Traditional bullying has been characterized by:

  • An intention by the bully to hurt the target (emotionally or physically)
  • An imbalance of power.
  • A continued threat of further aggression.
  • An inability by the target to defend themselves, or “fight back”.

All of these characteristics can be extended to, and even enhanced by the use of electronic media.

The term ‘cyber bullying’ is more often applied to the practice when it is perpetrated by one child upon another, or by an adult upon a child. When the practice is perpetrated by one adult upon another the terms ‘cyber stalking’ or ‘cyber harassment’ are more often used. This differentiation in terminology could be a proving point when deciding whether or not the act constitutes a crime or an infringement of law, as stalking and harassment appear to be more prevalent in the law courts, and perhaps easier to prove and legislate against.

All over the world governments are working on creating laws that protect their citizens from cyber bullying, stalking and harassment. But as you can imagine, this is an incredibly difficult task, given the breadth of the meaning that can be given to these terms and the needs to protect individual rights like freedom of speech and freedom of information, whilst trying to balance the need to protect citizens.

In the USA there is currently no Federal cyber bullying law that has been tested in the courts. A federal lawsuit did eventually result in Megan’s Law being passed in Missouri in 2008. Statute Chapter 565 – Offenses Against the Person Section 565.090 is unofficially known as Megan’s law, the statute is named after 13-year-old Megan Meier who committed suicide in 2006 after being the victim of an Internet hoax set up by a schoolmate’s mother. The law makes it a felony for someone 21 years or older to communicate with someone 17 years or younger by phone or electronic means in order to recklessly frighten, intimidate, or cause emotional distress to that person.

In New Jersey, the case of Tyler Clementi spurred legislators to pass the “Anti-bullying Bill of Rights.” Many other states have introduced their own legislation in various forms to try to prevent cyber bullying.

In the European Union (EU) there are no laws to prevent cyber bullying.

Cyber Bullying Law in Australia

Cyber bullying is a growing problem in Australia, and a recent article suggests that Australia has been polled as the worst country for cyber bullying in the world http://www.news.com.au/technology/anti-social-network-australia-the-facebook-bullying-capital/story-e6frfro0-1226246496953.[1] Perhaps one of the reasons for the rise is not that children and young adults are becoming meaner, but perhaps more that they are not only becoming desensitized to violence and bullying through their mass exposure to violent images via mass media (TV, movies, games), coupled with less parental supervision (due to busy lifestyle schedules); but also that the ability to bully anonymously takes away the feeling of moral responsibility they may feel when face-to-face with their victim.

The majority of cyber bullying ‘cases’ that have come to light in Australia have mainly involved one child being cyber bullied by one or more other children. The question, when looking at this from a legal perspective is “can the offender be deemed by law to be responsible for their actions?” This question ascertains whether or not the offender can be deemed to have perpetrated a criminal act. And this is why education in schools, coupled with parental discussion with regards to bullying, and now cyber bullying, is of the utmost importance.

In Australia, at common law, the age of criminal responsibility is 10 years (by statute). This means a cyber bully under 10 years will not be criminally responsible. Between the ages of 10 and 14, it must be proven that the child knew that they should not have committed the offence. Anyone over the age of 14 can be held criminally liable for their own conduct.

Legal discussion in Australia around cyber bullying has tended to focus on children and schools. New South Wales is the only state or territory to have introduced provisions to prevent cyber bullying, and these provisions only cover situations where both the offender and the victim, child or teacher are actually on the school premises.

Cyber bullying could be prosecuted in all Australian states and territories as ‘assault’. That is, if there exists a threat of force that puts the target in fear of imminent violence, whether there is in fact any actual direct or indirect application of force, then a common assault may have been committed. However, in order to prove such an offence the threat must be evidenced in some way, and under Queensland, Tasmania, and Western Australian statutes, words or images online are insufficient evidence of a threat.

The Commonwealth Criminal Code Act 1995 could be used as a redress against cyber bullying as it covers a number of offences including the misuse of telecommunications services to menace, threaten or hoax other persons.

This Act highlights a very important aspect of bullying and by extension, cyber bullying; and that is the intention of the bully. Even if the target of the bully does not have the fear that the bully will carry out their threat, if the intention of the bully can be proven, the bully can be prosecuted.

The Commonwealth Crimes Legislation Amendment (Telecommunications Offences and other Measures) Act (No. 2) was passed in 2004 and covers offences relating to mobile phones, including making hoax threats and hoax triple zero calls, making threats of violence and sending offensive images. The maximum penalty under this act is three years in prison, and an automatic criminal record.

Allem Halkic (17) jumped from Melbourne’s West Gate Bridge on February 5, 2009, after an ex-friend sent him a stream of threatening messages via SMS and the Internet. On April 8, Allem’s tormentor, Shane Phillip Gerada, 21, became the first person in Australia to face prosecution for stalking via cyber bullying when he pleaded guilty in the Melbourne Magistrates Court to stalking. Said magistrate Peter Reardon; “It demonstrates SMS messages or Internet communication may have severe consequences on intended victims, whether meant to or not.”

It is important to note here that bullying is not always just one person bullying another. Quite often there are several people involved in the bullying. This is the case in an increasingly common form of bullying known as ‘happy slapping’. This is where an unsuspecting victim is assaulted, and another party, or other parties capture the assault, often and increasingly using a mobile phone, and the resulting footage is then posted online. The people recording the assault are then accomplices to the assault under the Commonwealth Criminal Code Act 1995.

In 2011 there was outrage amongst the public when a mobile phone video went viral of a bully attacking another boy at a Western Sydney high school. In the wake of incidents like this, South Australia’s Attorney General John Rau proposed new laws to prosecute anyone involved in such activity.

All Australian states and territories have their own threat offences, which mirror the Commonwealth threat provisions.

There have been several well-publicized cases of cyber bullying, and cyber bullying related suicide amongst teenagers in Australia. But the majority of cyber bullying, especially amongst children and teenagers will go unreported.

It is important to remember that cyber bullying is not only the domain of children and teenagers. Work place cyber bullying is a practice that employers must be aware of and educated about in order to protect themselves from prosecution and their employees from being victims of or carrying out cyber bullying. This problem cannot be addressed by merely extending current workplace practices policies to cover cyber bullying.  New methods of education and redress need to be put in place, monitored, updated and reapplied regularly.