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The dilemma with the law and cyberbullying

Updated: Aug 29, 2019

Most people may be surprised to learn that there is not a specific law or offence that prohibits the act of engaging in 'cyber-bullying' per se. In other words, there is no law (criminal or civil) that defines the elements of cyberbullying nor proscribes cyberbullying as a punishable or compensable offence. Rather, each state and territory throughout Australia has laws that aim to capture cyberbullying-type conduct or behaviours such as threats, making menacing comments, engaging in offensive behaviour, sharing intimate images and so on. The Commonwealth, too, has its own laws that regulate similar behaviours.

So why isn’t there a law that specifically prohibits cyberbullying?

Well, the issue poses somewhat of a dilemma for lawmakers and law enforcement agencies. This dilemma relates to the unintended and undesirable consequences that might result if such a law was introduced, particularly in relation to child perpetrators of cyberbullying. On the one hand, there is the realisation that cyberbullying is occurring and that many people (many of whom are children) are suffering as a result. But on the other hand, to criminalise cyberbullying would potentially create other harms for the alleged perpetrators of cyberbullying, many of whom are also children. If cyberbullying laws existed then the perpetrators of such an offence would be thrust into the criminal justice system and be subjected to all manner of problems associated with that experience.

In November 2017 the Commonwealth Government released a report that examined the adequacy of existing offences in Australia in addressing cyberbullying (Report). The Report made quite a number of interesting findings in relation to the current laws in Australia. As part of submissions for the Report, the eSafety Commissioner argued that criminal sanction is not effective after the harm has been caused and it is more effective to aim for prevention through reporting, education and harm minimisation prior to the matter escalating to a criminal level. Similarly, the Tasmanian Government submitted that not all cyberbullying conduct should attract criminal liability and this was a common point made by others (e.g., Profesor Phillip Slee, Member of the Australian Universities’ Anti-bullying Research Alliance).

However, the Report also highlighted others who adopted a different position in relation to forming a separate offence for cyberbullying and stated that the existing laws are ‘deficient’ due to the inadequacy of the Commonwealth and State/ Territory criminal offences keeping pace with technology. For instance, the Victorian Women Lawyers group argued that ‘there is currently a gap in the law in relation to cyberbullying and it should be addressed in order to protect women’. Women in Media provided a similar submission when they stated there are ‘gaps which are being identified, including new offences, emerging trends, and cybercrime dependent crimes which may not be covered adequately by [the law]’. The Attorney-General’s Department (AG Department) submitted that any new law may not make cyberbullying easier to prosecute. The AG’s Department stated that the ‘broader’ offences are easier to prosecute than a specific offence.

Whilst some believed that existing laws were adequate to tackle cyberbullying, a number of proponents submitted that there needs to be ‘harmonisation of these laws nationally’ due to the different laws throughout Australia. The Law Council argued that human rights principles and the rule of law principles should also be considered in any changes to the existing legal framework. With such divergent views on what the should be, it is difficult to envisage any consensus on the law in the next few years and it would seem that the current legal framework will not be changing anytime soon.

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