Abstract
Despite there being widespread agreement that cyberbullying is a serious societal problem, there is little consensus on the laws and policies that should be implemented by government to address this issue. Whilst some commentators frame cyberbullying as a psychosocial problem that is most appropriately addressed through education and public health initiatives others see it as a legal issue that requires legislative reform. Further, whilst some call for the creation of a specific offence of cyberbullying others advance the importance of technology neutrality and recommend prosecuting online and offline bullying behaviour within a single coherent legal framework. In such a context, the purpose of the present article is to examine the adequacy of Australia’s present law and policy on cyberbullying, and consider the merits of creating a dedicated offence of cyberbullying. In this regard, special consideration will be given to the 2018 report of the Senate Legal and Constitutional Affairs References Committee entitled Adequacy of existing offences in the Commonwealth Criminal Code and of State and Territory criminal laws to capture cyberbullying. After considering relevant legislation, case law, scholarly discourse and reform discourse, the paper supports the Senate Committee’s decision to not recommend the creation of a new offence of cyberbullying and suggests that such a course supports technology neutrality and enhances the consistency and longevity of laws in this area.
Highlights
As the Internet has grown to become the leading medium of communication and social exchange in developed nations, the incidence of cyberbullying has correspondingly risen
Australia does not have a specific law criminalising cyberbullying, and such conduct is prosecuted under general federal telecommunications laws and criminal laws relating to bullying and stalking
In order to determine this issue, the subsequent section of the paper will consider the features of bullying and cyberbullying behaviour to examine whether they can potentially be encompassed within a single statutory framework, consider whether such a technology neutral framework is the best option in all the circumstances, and determine if there are further legislative refinements that can support the effectiveness of laws in this area
Summary
As the Internet has grown to become the leading medium of communication and social exchange in developed nations, the incidence of cyberbullying has correspondingly risen. In 2018, the supporting legislation of the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 (Cth) was enacted to criminalise the non-consensual online sharing of intimate images Despite such reforms, Australia does not have a specific law criminalising cyberbullying, and such conduct is prosecuted under general federal telecommunications laws and criminal laws relating to bullying and stalking. A lack of awareness of the potential criminal nature of acts of cyberbullying lead to lower levels of reporting to relevant authorities such as police and schools and compounds the problem of assessing the prevalence of cyberbullying Despite these challenges, the Keeley et al study found that “the prevalence of cyberbullying has rapidly increased since it first emerged as a behaviour” (2014, 3). In light of evidence as to the increasing prevalence of cyberbullying and its potentially serious consequences, it is critical to ensure that such behaviour is effectively prosecuted to promote online safety
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