Commonwealth Director of Public Prosecutions

Cyberbullying and Threats

Cyberbullying and Threats

Cyberbullying involves the use of the internet and social media to bully, including broadcasting assaults or other crimes via social media or other means of communication. This conduct, or similar conduct by post or phone, may constitute a serious criminal offence.

There are criminal offences for communications containing threats to kill or threats to cause serious harm. It must be proven that the offender intended the receiver to fear that the threat will be carried out.

There are criminal offences for communications which menace, harass or cause offence either by the content of the communication or the manner and frequency of the communication. These may occur by post or by use of a ‘carriage service’ such as through a phone, internet, social media or other application.

To establish this criminal offence the material must be seriously or significantly offensive according to an objective standard as regarded by a reasonable person. Alternatively, to be ‘menacing’ or ‘harassing’ requires a serious potential effect on receiver, such as causing apprehension or fear for the person’s safety, according to an objective standard of a reasonable person.

Aggravated offences involving private sexual material or adult cyber-abuse

Non-consensual sharing of private sexual material has previously been prosecuted under s 474.17 Criminal Code as using a carriage service to menace harass or cause offence, or other offences involving threatening to cause harm. Since 1 September 2018 specific aggravated offences were included into the Criminal Code to address this conduct by s 474.17A(1) and (4) Criminal Code.

If the online offence of menace, harass or cause offence involves the transmission or sharing of private sexual material then a standard aggravated offence may be proven. If 3 or more civil penalty orders have previously been made against the person then the special aggravated offence may be proven.

These offences only apply to material depicting adults. This is because different ‘child abuse material’ offences exist in the Criminal Code (Cth).  Serious criminal penalties apply to child abuse material offences which depict or describe a child under 18 in a sexual pose, or engaged in sexual activity or as a victim of torture cruelty or physical abuse.

There is also a civil penalty regime enforced by the Office of the eSafety Commissioner for image based abuse regarding adults. This relates to the non-consensual sharing of intimate images of an adult. The eSafety Commissioner may facilitate the removal of intimate images shared without consent.

From 24 January 2022 a new civil penalty regime for adult cyber-abuse, which will not be restricted to the sharing of private sexual material, will also be enforced by the eSafety Commissioner.  From that date, the s 474.17A(4) Criminal Code special aggravated offence may also apply to persons who have received 3 or more civil penalty orders for adult cyber-abuse.

Assistance to Victims

Prosecutors in this area work closely with investigators and our Witness Assistance Service to ensure that victims are treated with dignity, courtesy and respect. The CDPP Victims of Crime Policy sets out an important framework for engaging with victims of crime and their families, where appropriate. In some circumstances, measures in the Crimes Act 1914 may be available to be used to assist victims and witnesses to give evidence where they are unable to do so in the ordinary way because of intimidation, distress, emotional trauma or disability.

Main offences

  • s 474.17 Criminal Code Using a carriage service to menace, harass or cause offence
  • s 474.17A(1) Criminal Code Standard aggravated offence involving private sexual material – using a carriage service to menace, harass or cause offence
  • s 474.17A(4) Criminal Code Special aggravated offence – using a carriage service to menace, harass or cause offence
  • s 474.15(1) Criminal Code Using a carriage service to make a threat to kill
  • s 474.15(2) Criminal Code Using a carriage service to make a threat to cause serious harm
  • s 471.12 Using a postal service to menace, harass or cause offence
  • s  471.11(1) Criminal Code Using a postal service to make a threat to kill
  • s 471.11(2) Criminal Code Using a postal service to make a threat to cause serious harm

Penalties

The maximum penalties are terms of imprisonment of 3 years (menace, harass or cause offence), 5 years (standard aggravated offence – menace, harass or cause offence), 7 years (special aggravated offence – menace, harass or cause offence, 10 years (threat to kill), 7 years (threat to cause serious harm).  The Federal Parliament has passed legislation which will increase the maximum penalty for some of these offences by the Online Safety (Transitional Provisions and Consequential Amendments) Act 2021 (Cth). Commencing on 24 January 2022 the maximum penalties are terms of imprisonment for 5 years (menace, harass or cause offence using a carriage service), 6 years for standard aggravated offence involving private sexual material.

Significant Cases

  • Monis v R (2013) 249 CLR 92

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