Does Australia need tougher cyberbullying legislation?

By Nadia Wu

Before Facebook there was Facemash.

In 2003, Facebook CEO and founder Mark Zuckerberg created the “hot or not” website, which compared photos of Harvard students and asked users to vote for the “hotter” person. By the time the humiliating website was shut down, Zuckerberg told college daily newspaper The Harvard Crimson that 450 people had visited the website to vote at least 22,000 times.

It was an ominous beginning for social media. And as the popularity of social networking sites soared – Facebook boasted 1.28 billion monthly active users at the end of March this year – the hidden underbelly of technology emerged from behind the computer screens: cyberbullying.

This form of bullying is pervasive and insidious. The 24/7 nature of technology means cyberbullying can happen anytime and anywhere. Bullies can cloak themselves in the anonymity of an internet pseudonym or a masked caller ID to harass their victims. Humiliating internet posts, photos and videos can be read and viewed repeatedly, retweeted and shared with hundreds and even thousands of people with just a single click of a button. And perhaps the most damaging of all – once in cyberspace the material often becomes immortalised for all to see.

The case of television personality and former model Charlotte Dawson has been Australia’s most high-profile incident of cyberbullying to date, and demonstrates the serious threat cyberbullying can pose to physical and mental health. After speaking out against cyberbullies in 2012, Twitter “trolls” subjected Dawson to a torrent of vile, anonymous abuse, one of whom told her to “go hang yourself”. A highly publicised battle on social media followed and Dawson sank into depression.

Dawson was hospitalised after attempting suicide in August 2012. She killed herself earlier this year.

Her tragic death has prompted calls for tougher Australian legislation to tackle the growing problem of cyberbullying. As Australia does not have specific bullying legislation, the laws governing cyberbullying behaviour to date are a hodge-podge of criminal, civil and workplace offences – laws not specifically designed to address cyberbullying behaviour. The Criminal Code Act 1995 (Cth), although typically reserved for more serious conduct, is currently considered the best option to prosecute cyberbullying. These Commonwealth offences make it illegal to use a “carriage service” – such as the phone or internet – to engage in menacing, harassing and offensive behaviours, including making threats of harm or to incite suicide.

But former chief justice of the Family Court of Australia Alastair Nicholson, who is also chair of the National Centre Against Bullying, has long been vocal in his criticism of Australia’s current laws. Mr Nicholson originally condemned the laws in 2007, telling Fairfax Media that the laws failed to cover “dissemination” – the sharing and forwarding of second-hand material – and lawyers have been left to adapt legal arguments to fit anti-stalking and harassment laws. Speaking at the national Bullying, Young People and the Law symposium in July last year, Mr Nicholson said current laws differed between states and do not define bullying or clarify the legal duties of schools, teachers, parents and carers. Earlier this year, he also spoke in favour of criminalising cyberbullying behaviour.

The idea of creating a specific set of cyberbullying laws in Australia has been met with mixed reviews. Critics argue this approach would criminalise more young people, has failed to take account of existing legal remedies and would put undue pressure on the legal system and police resources. Opponents instead call for more education about cyberbullying and the applicable laws, for institutions, the public and the police. Cyber safety expert and former police officer Susan McLean told ABC’s 7:30 last year that police have been ignorant about how to handle cyberbullying complaints due to a lack of training, knowledge of the law and internal support.

But while there does need to be more education about cyberbullying, the current system fails to provide victims with what they need most: speedy and effective removal of offending material from cyberspace. Quick access to such remedies is best way to begin repairing the damage, where even the shortest delays can have the direst consequences.

The current system has been too slow and cumbersome to be effective in this respect. Creating streamlined cyberbullying laws in Australia would eliminate confusion about what cyberbullying is and would be a more effective deterrent. Specific offences set boundaries on what is considered lawful and would send the message to society that such behaviour is not to be tolerated.

New offences could also be designed to take account of the latest developments in technology and to reflect more proportionate penalties – such as community orders and fines – to avoid imprisoning minors and focus on remedies aimed at removing offending material.

This approach was reflected in New Zealand’s recently introduced cyberbullying bill. The Harmful Digital Communications Bill 2013 (NZ) requires a complainant to first resolve the problem informally through an approved agency, which would provide advice, information and support. If this recourse fails, the complainant can then apply for various orders, including take-down orders, correction orders and orders to reveal identities of anonymous authors.

Although such a model may be considered draconian, the right to freedom of speech is not absolute. It must be balanced with the rights and freedom of others, including the right to the highest attainable standard of physical and mental health.

Yes, there may be potential for new laws to be misused, for the police to be inundated with complaints. Specific cyberbullying legislation may not be the perfect solution, but such a system might be more effective than laws that predate the internet.