As today is the National Day of Action Against Bullying and Violence, I thought it appropriate to post another blog about cyber bullying.
In my last blog I discussed some aspects of cyber bullying and in particular the circumstances under which a school authority may be at risk of a civil claim for breach of its duty of care.
In this blog I am going to discuss some of the criminal aspects of cyber bullying, because it is apparent from many discussions I have with educators that the criminal consequences are sometimes overlooked.
In February 2003, the NSW Crimes Amendment (School Protection) Act commenced to provide protection where a person assaults, stalks, harasses or intimidates any school staff or student while attending a school. I see no reason why, in certain circumstances, these expressions might not encompass cyber bullying. Unfortunately, the section is somewhat limited in that it only provides protection for a member of staff or student when the act takes place on school premises or while entering or leaving school premises. Therefore, this provision would not cover cyber bullying activities occurring at home or on the way home.
Section 31 of the NSW Crimes Act makes it an offence to maliciously send or deliver, or cause to be received, any document threatening to kill or inflict bodily harm. In certain circumstances, cyber bullying might fall within the ambit of this section.
Moreover, cyber bullying behaviour which constitutes harassment, intimidation or stalking may in some circumstances be in breach of criminal legislation which applies in most states of Australia.
Where cyber bullying consists of the use of non-consensual visual recordings, often on a mobile phone camera, such that there is a gross breach of privacy, the posting of such recordings on a website may also constitute a criminal offence.
Cyber bullying can also take place through telecommunication services. Where telecommunication services are used to menace, threaten or hoax other persons, which can often be the case in cyber bullying, the Commonwealth Criminal Code may provide some protection.
Finally, cyber bullying can, in some circumstances, constitute an assault. It must be remembered that assaults cover not only physical force, but also situations where a person fears imminent harm by means of a verbal threat. Most cyber bullying is verbal in nature and in some cases the criminal offence of assault might be triggered by the bully’s conduct.
It can be seen from this brief summary that cyber bullying is extremely complex. It not only encompasses a number of civil causes of action, including civil duty of care issues canvassed in my last blog, but also has many criminal elements. Although not all of these criminal elements apply in every state of Australia, they are reasonably similar from state to state.
Children and teachers who are the subject of cyber bullying might keep these criminal sanctions in mind should the cyber bullying escalate to the point of triggering one of these offences.
There is an excellent article by Des Butler, Sally Kift and Marilyn Campbell called”Cyber Bullying in Schools and the Law: is there an effective means of addressing the power imbalance?“ published in the Murdoch University Electronic Journal of Law (2009) which I have linked. Those wishing further in-depth reading on this topic would find this article a great resource.