Introduction

Cybercrime and online harassment have become bigger issues affecting folks and communities in New South Wales, shining a light on the urgent need for strong telecommunications laws. The growing numbers of problems like cyberbullying, cyberstalking, and online abuse mean it’s vital to understand the legal rules that help keep us safe online.

This guide offers an overview of the various telecommunications offences related to cybercrime and online harassment in NSW, detailing their implications for both victims and the community. By examining the legal definitions and consequences of these offences, readers will gain essential insights into safeguarding against and addressing online threats.

Types of Offences Cyber Offences in New South Wales

Cyberstalking

Cyberstalking involves persistent conduct through electronic means intended to intimidate or control another person. This behaviour can manifest in various forms, including:

• Phone Calls: Repeated and unwanted calls aimed at instilling fear or asserting control over the victim.
• Text Messages: Continuous messaging that threatens, demeans, or manipulates the individual.
• Social Networking Messages: Frequent and intrusive communications on social media platforms, designed to monitor or influence the victim’s actions.

Cyberbullying

Cyberbullying is the use of electronic communications to harass or intimidate individuals, often targeting them repeatedly. Key characteristics of cyberbullying include:

• Offensive Comments: Posting derogatory or harmful remarks aimed at degrading the victim.
• Threats: Making explicit or implicit threats to cause harm or distress.
• Exclusion: Deliberately excluding someone from online groups or conversations to isolate them.

Cyber Harassment

Cyber harassment encompasses a range of behaviours that cause offence or distress through telecommunications services. This offence is characterised by:

• Repeated Communications: Continuous messages or calls that overwhelm or distress the recipient.
• Offensive Content: Sharing inappropriate or harmful material that targets an individual or group.
• Menacing Behaviour: Using language or actions that create a sense of fear or intimidation.

Using a Carriage Service to Menace, Harass or Offend

Under the Criminal Code Act 1995 (Cth), using a carriage service to menace, harass, or offend is a specific offence. A carriage service is broadly defined as any service that carries communications by electromagnetic means, including social media, emails, text messages, and phone calls. Key aspects of this offence include:

• Menacing Communications: Messages that threaten harm or convey a sense of danger.
• Harassing Behaviour: Persistent and unwanted communications aimed at causing distress.
• Offensive Content: Sharing material deemed offensive by a reasonable person, based on societal standards.

Examples of this offence include sending threatening emails, making incessant harassing phone calls, or posting offensive remarks on social media platforms. The broad definition ensures that a wide range of behaviours can fall under this offence, emphasising the importance of responsible use of telecommunications services.

Maximum Penalties

Penalties for Cyberstalking

Cyberstalking, as defined under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), involves a persistent course of conduct intended to intimidate or control another person. The maximum penalties for cyberstalking offences include imprisonment for up to 5 years or a fine of $5,500 penalty units, or both.

Penalties for Cyberbullying

Cyberbullying involves the use of electronic communications to harass or intimidate individuals. In NSW, cyberbullying can be prosecuted under the offence of using a carriage service to menace, harass, or cause offence. The maximum penalty for this offence is imprisonment for up to 3 years.

Penalties for Cyber Harassment

Cyber harassment includes behaviours that cause offence or distress through telecommunications services. The maximum penalty for cyber harassment offences is imprisonment for up to 3 years.

Penalties for Using a Carriage Service to Menace, Harass or Offend

The offence of using a carriage service to menace, harass, or cause offence is governed by the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is imprisonment for up to 3 years. Additionally, using a carriage service to make a threat to kill carries a maximum penalty of 10 years imprisonment, while causing serious harm through such means can result in up to 7 years imprisonment.

Available Defences

Lack of Intent

A common defence against telecommunication offences related to cybercrime and online harassment is demonstrating a lack of intent to menace, harass, or offend. To successfully argue this defence, the accused must prove that their actions were not intended to cause fear or distress to the victim. For example, if a message was sent without the intention to harass, it may negate the mens rea required for the offence.

Mistaken Identity

Mistaken identity can serve as a defence in cases of cybercrime where the accused is incorrectly identified as the perpetrator. This defence requires the accused to provide evidence that they were not the individual responsible for the offending behaviour. For instance, if someone is falsely accused of sending threatening messages, proving that the messages originated from a different source can exonerate them.

Consent

In certain circumstances, demonstrating that the victim consented to the communication can act as a valid defence. Consent must be clear and informed, meaning the victim agreed to the interaction willingly and was aware of its nature. For example, in cases where an allegation arises from a consensual online interaction that escalates, proving agreement can help mitigate claims of harassment.

Technical Errors

Technical errors or misunderstandings in communication can be used as a defence if they resulted in unintended harassment or offence. This could involve situations where automated systems or glitches inadvertently send messages without the user’s intent. Providing evidence of such errors, like system logs or technical reports, can help demonstrate that the offence was not deliberate.

Legal Procedures and Prosecution

Investigation Process

NSW Police have been trained to investigate cybercrime and online harassment since 2015. The investigation process typically involves several key steps:

• Digital Forensics: Experts analyse digital devices and online activities to gather evidence related to the offence.
  
• Evidence Collection: Police collaborate with telecommunication providers to obtain records of calls, messages, and online interactions necessary for building a case.
  
• Collaboration with Authorities: Federal and state authorities may work together on cases that involve Commonwealth offences, ensuring comprehensive investigation efforts.
  
• Reporting and Documentation: Detailed reports are compiled to support potential prosecution, ensuring that all evidence is accurately documented and presented.
  

Court Proceedings

Once an offence is established, the case moves through the court system. The court proceedings generally include the following stages:

• Charging: Formal charges are laid by the prosecutor based on the evidence collected during the investigation.
  
• Pre-Trial Hearings: These hearings address bail applications and other preliminary matters to determine whether the case should proceed to trial.
  
• Trial: Both the prosecution and defence present their cases. The prosecution is required to prove the offence beyond a reasonable doubt, ensuring that the defendant receives a fair trial.
  
• Judgement and Sentencing: If convicted, the court determines appropriate penalties based on the severity of the offence and relevant laws. Sentencing may include fines, imprisonment, or other penalties as outlined in the Criminal Code Act 1995 (Cth).
  
• Appeals: Defendants have the right to appeal convictions or sentences according to procedural rules, providing an additional layer of legal oversight.
  

The prosecution of telecommunication offences requires meticulous adherence to legal standards to ensure fairness and justice throughout the legal process.

Case Studies

Case Study: R v Hampson [2011] QCA 132

In R v Hampson [2011] QCA 132, the District Court at Brisbane sentenced Mr Hampson for posting offensive pictures and comments on Facebook tribute pages dedicated to deceased or missing children. Initially, he received a sentence of 3 years imprisonment with the possibility of release after 12 months. Upon appeal, the sentence was reduced to 2 years imprisonment, with an order for his release after serving 290 days in custody, contingent upon entering into a recognisance of $1,000 and maintaining good behaviour for two years.

Case Study: Agostino v Cleaves [2010] ATSC 19

In Agostino v Cleaves [2010] ATSC 19, the ACT Magistrates Court convicted Mr Agostino for using the Internet in a manner that a reasonable person would consider menacing. He was sentenced to 6 months imprisonment for sending threatening messages on Facebook, which included explicit threats to kill the victim and the victim’s family following the commencement of a relationship between the victim and Mr Agostino’s former partner.

Conclusion

Telecommunications offences related to cybercrime and online harassment are increasingly prevalent in NSW, encompassing offences such as cyberbullying, cyberstalking, and the use of carriage services to menace or harass others. Understanding these offences and the associated legal frameworks is essential for both individuals and organisations to ensure online safety and compliance with the law. The penalties for these offences can be severe, including significant fines and imprisonment, underscoring the importance of adhering to NSW and Commonwealth laws. By being informed about the legal definitions and consequences, individuals can take proactive steps to protect themselves and seek appropriate legal assistance when necessary.

Frequently Asked Questions