Defining cyber bullying

Cyber bullying is a form of bullying using text or images posted on personal websites or sent by mobile phone or email. Depending on the nature of the material posted or transmitted, people who engage in cyber bullying may be committing a criminal offence.

Defining cyber stalking

Stalking involves a person following another person or watching or frequenting places where the other person goes, such as his or her home, work or places of recreation. The Commonwealth Government’s online safety describes cyber stalking as occurring when a person is stalked or harassed by another person using an email service or another electronic message system in a frequent and intrusive manner. The stalking can involve threats or sexual innuendo. Stalking is generally for the purpose of inducing fear or intimidation.

Failure to cease behaviour once requested

Depending on the particular circumstances, including the nature of the material in question, criminal and or civil action may be available.

Possible criminal action

The Commonwealth Criminal Code (the Code) provides for various offences involving inappropriate use of emails, telephones or text messaging. In summary, the Code makes it an offence to use emails, telephones or text messaging:

• to make threats to kill or seriously harm a person in circumstances where the person making the threat intends that the person receiving the threat to be fearful that the threat will be carried out – maximum penalty between 7 and 10 years imprisonment
• in a way, whether by method of use or the content of the communication or both, that a reasonable person would regard as being menacing, harassing or offensive – maximum penalty 3 years imprisonment.

The NSW Crimes Act 1900 (the Act) also has a number of provisions which may be relevant. In summary, the Act makes it an offence to:

• intimidate a person or his or her family because of that person having either made or not made a decision which he or she was legally entitled to make or not make – penalty 2 years imprisonment and or $5,500 fine
• intimidate a person or his family with a view of compelling that person to do or not do an act which the person has a legal right to do or not do – penalty 2 years imprisonment and or $5,500 fine

For the purposes of the Crimes Act offences, intimidate means:

• causing a reasonable apprehension of injury to the person or his/her family or violence or damage to any person or property
• Intimidating a person for the purpose of causing the person to fear physical or psychological harm to him or herself (including members of his or her family) – penalty 5 years imprisonment and or $5,500 fine.

For the purposes of this offence, intimidate means the same as indicated above as well as any conduct amounting to harassment or molestation or the making of repeated telephone calls.

Apprehended Personal Violence Order (APVO)

An APVO can be sought if a person has reasonable grounds to fear, and does fear, that another person or persons will harass, intimidate, molest or stalk him or her. This would include any of these behaviours undertaken by means of emails or websites. For the purpose of the APVO legislation, “intimidate” includes making repeated telephone calls to a person. The repeated use of emails or other forms of electronic messaging may also amount to intimidation for the purposes of obtaining an APVO. Legal issues bulletin 44 – Apprehended Violence Orders sets out the general requirements for staff seeking APVOs as a result of work-related incidents.

Possible civil action

Depending on the nature of the material, it may be possible to take defamation action against the person responsible. It should be noted however that in line with government policy, the department cannot assist staff who wish to pursue defamation proceedings. Legal Services can, however, provide preliminary advice on whether any material is defamatory and the likely success of legal action. Please refer to legal issues bulletin 34 – Defamation .

What action can be taken to remove offensive material?

The department’s IT HelpServices can take action to block school access to the site. Immediate contact should be made with IT HelpServices.

Abusive junk emails, including the sender’s email address ,can be forwarded to Abuse@det.nsw.edu.au (for DEC employees only) so that action can be taken to have the email address blocked. This action may be less effective however when different addresses are used by the sender.

The department cannot however directly close down any external site. Any decision to close down the site will be a matter for the site host. If principals believe a non-departmental website contains inappropriate material about individual staff members, they should contact the site host to discuss the issue.

If principals are unable to identify the host site, the following procedure should be followed:

• determine the site address of the offending site – e.g. www.xyz.org.au
• go to the “whois server” address at http://www.fr1.cyberabuse.org/whois/?page=whois_server
• enter the details of the offending site to determine who owns the site and how to contact them.

If after following this procedure, principals are unable to determine the host site, assistance should be sought from the department’s IT directorate HelpServices .

If the material relates to an incident at a school involving violence or weapons, the matter should be referred to the School Safety and Response Hotline. Officers in the School Safety and Response unit will provide advice about flagging the material and managing the incident.

Suggested actions for victims

If you are the victim of cyber bullying or stalking, the following action should be taken:

• immediately report the matter to the principal
• if the identity of the person is known, you should immediately make contact with the person and ask that they cease the relevant behaviour. If the behaviour involves material on a website, you should also ask the person to immediately remove the offending material
• report rule breaches to the relevant social media service. Please refer to Legal Services FAQ on cyber bullying and social media for information about how to do this
• if the person refuses to act on any request made, the identity of the person is not known or there are genuine safety issues which make it inappropriate for you to contact the person, advise  your principal
• if the offender is a school student, the principal should take appropriate action under the relevant student discipline policy.  School principals should also report the matter to the School Safety and Response Hotline
• where the material is located on a website, the principal should take steps, as outlined in this bulletin, to have departmental access to the site blocked and the site itself closed down
• if considered appropriate, you should report the matter to your local police for further investigation of possible breaches of the criminal law. Your principal can also take this action on your behalf
• if the offending behaviour gives rise to genuine concerns about the ongoing safety of either yourself or your family, you should contact the department’s Legal Services to seek advice about the possibility of obtaining an Apprehended Personal Violence Order. Staff should refer to legal issues bulletin 44 – Apprehended Violence Orders for further information regarding apprehended personal violence orders
• if you believe that material on a website is defamatory, you can contact Legal Services for preliminary advice on what options may be available
• information and advice can also be obtained from the Commonwealth Government’s online safety at https://www.australia.gov.au/information-and-services/public-safety-and-law/online-safety

What if the person responsible for the cyber bullying is a parent of a student?

It does not matter. The suggested course of action outlined in this bulletin applies equally to cyber bullying perpetrated by parents or anyone else.

Other Information

This bulletin should be read in conjunction with the following department policies which can be found in the department’s policy library :

• Student Behaviour policy
• Code of Conduct
• Work Health and Safety (WHS) Policy
• Social Media Policy
• Suspension and Expulsion procedures
• Communication Devices and Associated Services Policy

Other Useful Links

Social Media & Technology: Guide for Staff

More information about managing social networking

The Department of Education’s Incident Support Hotline (1800 811 523) has a Links Newsletter that provides a range of practical advice about how to manage a social networking incident.