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Cyberbullying in Social Networking Sites and Blogs: Legal Issues for Young People and Schools
SALLY KIFT,[*] MARILYN CAMPBELL[†] AND DES BUTLER[**]
This article examines the social networking phenomenon that has been so readily embraced by school-age adolescents, in the context of its potential to contribute further to the mechanisms for and incidence of cyberbullying amongst school students. Cyberbullying in these online fora, as a misuse of technology to harass, intimidate, tease, threaten, abuse or otherwise terrorise peers, teachers and/or the school in general, is discussed from both the psychological perspective and in terms of its legal ramifications (both criminal and civil) in Australia. Some recommendations for proactive and preventative measures, education and policy adoptions are provided, together with general advice to parents, schools and adolescents on awareness of the risks involved and how young people might better protect themselves in light of that knowledge.
It is not new to observe that modern-day adolescents spend large amounts of time in seemingly ubiquitous online interactions. The Net Generation (those born from 1982 onwards) is always on, always connected and prolific in its electronic socialising and interactive communications.[1] For example, the Australia 2009 Children's Participation in Cultural and Leisure Activities survey reported that, of the 2.7 million children surveyed aged 5 to 14 years, 79% used the Internet.[2] It is clear that Net Geners explore social connectedness through technology as a seamless extension of their daily lives.
The past ten years has seen an exponential growth in the use of social networking sites, such as Facebook, Myspace, Bebo and Twitter,[3] and the creation of individual blog sites. A 2005 study at Georgetown University[4] recorded that 52% of blogs were being developed and maintained by teens aged 13-19, with the split between genders being fairly even. While this percentage might be the highwater usage mark, other studies in the United Kingdom (UK) and the United States of America (US) report blog usage of over 30% amongst this age group. The Guardian[5] reported that 31% of 14 to 21-year-olds with a web connection at home said that they had launched their own personal site or blog, while a March 2005 study by the US Kaiser Family Foundation found that 32% of American children and teens aged between 8 and 18 had already created a personal web site or a web page.[6]
Social networking sites such as Facebook or individual blogs allow young people, without the need for web programming skills, to publish and self-reflect online with incredible ease. For the always-connected generation, this public space allows them to exchange information, often of a very candid nature, interactively with their peers on a wide range of issues. Social networking sites are being used as online, collaborative diaries — virtual hangout spaces — where the amount of information and its type is limited only by the teenager’s self-restraint or, more desirably though not commonly, by reason of parental involvement. It is not uncommon for teenagers to:
• disclose large amounts of personal and quite intimate information about themselves online in personal profiles;
• post pictures of themselves and their friends;
• disclose contact details (including email and instant messenger user names), geographical location (school and personal) and other biographical information;[7]
• post comments and provide opportunities for others to comment and provide feedback in response;
• discuss boyfriends or girlfriends and their own sexual identity;[8] and
• link to music, audio and video files.
All of this information, depending on the level of openness and accessibility allowed by the young person’s privacy settings, may be available to online strangers but is usually always available to peers, including friends, online ‘friends’ of friends and others from their schools.
While schools and their students are embracing the opportunities for collaborative learning that online tools such as portfolios, blogs and wikis allow, the rising popularity of these affordances for both social and educational use carries with it the very real potential for these tools to be misused as yet another method of Internet harassment and cyberbullying, especially by and amongst adolescent school students. An awareness of the dangers inherent in revealing personal information online over very public social networks is increasingly being recognised nationally and internationally as a grave cyber-safety issue for adolescents. Consequently, young people have been encouraged to limit access to their online sites considerably and also to curtail the extent of the personal information disclosed. Despite this however, many still fail to appreciate fully the serious ramifications of their material being so widely available in cyberspace and that it can be used, copied and stored against their interests in extreme ways. That the threat comes not only from online strangers, including Internet predators, who might make unsolicited sexual advances or engage in other online grooming or cyberstalking, but also from much closer to home, potentially via peers as yet another means of cyberbullying, is particularly problematic.
With home access to the Internet now commonplace, and as social networking proliferates and becomes increasingly sophisticated — with more free platforms and new tools available, enhanced interfaces with greater flexibility on offer, and user-friendly capabilities for posting, sharing, excluding and manipulating (the latter through ‘photoshopping’ for example) — the danger for school-aged adolescents is becoming less imagined and more apparent. Schools, parents and students all have a role to play in managing these foreseeable risks. This article discusses the risks posed in this environment by cyberbullying and considers the legal consequences for both perpetrators and schools. It concludes by making some recommendations for action.
‘Cyberbullying’ is a descriptive term attributed to Canadian Bill Belsey and denotes bullying using technology. Besley has defined cyberbullying in the following terms: ‘Cyberbullying involves the use of information and communication technologies to support deliberate, repeated, and hostile behaviour by an individual or group, that is intended to harm others.’[9]
By contrast, Smith et al suggested the following definition: ‘Cyberbullying is reported as an aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend him or herself.’[10]
Cyberbullying can occur between students in web chat rooms, by email and texting, in blogs and on other social networking sites, in wikis and on webpages more generally. Websites have been created and Facebook used in Australia, the United Kingdom, the United States and Canada to enable students to ‘rate’ teachers (for example, ratemyteachers.com) and to post offensive comments about them.[11] However, it is still unclear whether understandings of face-to-face bullying, such as they are, apply equally to cyberbullying or whether the use of technology to bully requires a rethinking of traditional concepts and responses to bullying.
The issue is made all the more difficult because researchers and practitioners still differ on a definitive definition of face-to-face bullying, though most would agree that bullying is a subset of aggression and there are three attributes that underpin bullying conduct. These are: the intent to hurt; an imbalance of power; and repetition. Smith et al’s definition of cyberbullying, at least, would suggest that cyberbullying has similar attributes. The intent to hurt from the perpetrator present in bullying would seem to be the same for cyberbullying: the bully knows that they are harassing their target and revel in the infliction of emotional pain and distress thereby caused. It is not accidental behaviour. The dedicated use of technology to subject the target to harassment, threats, insults and ridicule further suggests intention. The concept of an imbalance of power in cyberbullying is slightly more problematic. Usually in face-to-face bullying, the bully has a power differential because of size, age and/or position, but if the bully is anonymous then this disparity is absent. Instead, in cyberbullying, it would seem that the bully’s very anonymity, combined with their easy recourse to a 24/7 means of attack, creates the power imbalance. Furthermore, as there is now evidence to suggest that most young people involved in cyberbullying are also involved in bullying face-to-face, it is likely that the perpetrator(s) are in fact known to their victim and that the traditional notions of power imbalance pertain.[12] The third element of repetition, or the continued threat of further aggression, which leaves the target experiencing sustained agitation or fear, is also readily transferable to the cyberbullying context: the cumulative effect of harassment via the use of technology, which invades the target’s home and personal space, reaches a wide audience and cannot be controlled, causes anxiety, distress and harm.
The ease of use, popularity and pervasiveness of social networking sites and blogs are further reasons for cyber-safety concern as cyberbullies find fresh and innovative ways to abuse the technology their peers have so readily embraced. Adolescent bullies have proven themselves quick to harness any and all means of new mass communication devices to attack, demean, humiliate and mock their peers. And, as the nature of an initial, seemingly innocuous post or online exclusion escalates in seriousness and severity due to the frequency of its repetition, the size of the networked audience reached, and the potential for more dangerous third parties to become involved (such as hate-groups and sexual predators), the effect on the target becomes more pronounced. Cyberbullying in a social networking or blogging context might include:
• posting cruel messages or threats on a social network profile or blog that belongs either to the target or the bully (for example, leaving nasty comments on a target’s Facebook wall);
• setting up a social network site such as bogus Facebook page so to exclude or ostracise a target, using the ‘ignore’ function, refusing to answer the target’s messages, or deleting the target from a friendship list;
• uploading nasty photoshopped images or other images taken without the target’s knowledge or consent;
• using the personal information and secrets disclosed by the young social networker against them in a different context (for example, using information posted (about a relationship break-up, for example) to humiliate and embarrass either party by taking it out of context or by using it as a basis for further false postings);
• using the public forum to damage or defame the target’s reputation;
• as an invasion of privacy;
• setting up a profile page or blog posing as the target and posting inflammatory messages or saying things designed to humiliate or otherwise get the target into trouble; alternatively copying and then modifying an existing blog or profile page with the same intent;
• using the online forum itself, or stealing images posted by the target on their own pages, to set up a survey or poll which asks others to vote on the ugliest, most unpopular, biggest geek, fattest, sluttiest etc in the school;[13] posting insults on a social networking site or blog which can lead to ostracism at school the next day;
• posting fabricated information about another person on a social networking site or blog; and
• posting a threat of a repeat of a Columbine-type attack on the school or specific targets.
While information on the prevalence of cyberbullying is limited, studies show that cyber bullying is experienced by between approximately 7% and 30% of adolescents.[14] The research results to date vary from country to country, with a Canadian study finding 24.9% of adolescents reporting they have been cyberbullied[15] while a North American study found only 7% reported being victimised.[16] The incidence also varies over time with 25% of young people reporting being targets of cyber bullying in one of the first studies in 2002,[17] which seems to have increased to 35% in 2005.[18] Recent data collected from over 7,500 students as part of the Australian Covert Bullying Prevalence Study (ACBPS), suggest average levels of frequent cyberbullying (every few weeks or more often) across Australia are approximately 7% among students in Years 4 to 9 and 4% reported they cyber bullied others frequently.[19]
The incidence of cyberbullying is thus presently difficult to determine, exacerbated by the tendency of researchers to often use loose definitions of bullying to include all forms of cyber aggression and not just bullying. Additionally, there is the problem of asking either a global question ‘have you been cyberbullied?’ or asking if a specific act, such as a nasty email, has been received.[20] Different percentages are gleaned from each method. This is similar to adult research on workplace bullying. It seems that most young people who are involved in cyberbullying as either victims or bullies are also involved in bullying face-to-face. Beran and Li[21] found 64% of cyberbullies admitted to also bullying face-to-face, while Cross found that 80% of the students were the same people.[22]
It is known that face-to-face bullying can lead to severe physical harm, self-harm attempts[23] and even suicide.[24] Further reported consequences of face-to-face bullying have included increased levels of depression, anxiety and psychosomatic symptoms in victims.[25] Bullied students also feel more socially ineffective; have greater interpersonal difficulties[26] together with higher absenteeism from school and lower academic competence with consequent implications for future careers.[27] However, it is still unclear if these symptoms are antecedents or consequences of bullying.[28] Thus the direction of causality many be both ways.[29]
While there is scant research on the consequences of cyber bullying, it has been hypothesised that it could have even more serious consequences than face-to-face bullying.[30] Cyberbullying has a variety of attributes that may accentuate the impact of the bullying behaviour, such as a potentially wider audience, anonymity, the more enduring nature of the written word and the ability to reach the target at any time and in any place including previously considered safe havens such as the target’s home. Additionally, bullies may be more emboldened because they cannot see their targets or their immediate responses, and believe that, because of their anonymity, they will not be detected. It has also been postulated that this latter may increase the intensity of the attacks and encourage them to continue for longer than they would face-to-face.[31]
Although bullying by physical violence can only be threatened, not conducted, by technology, research has shown that verbal and psychological bullying may have more negative long-term effects.[32] The negative effects of verbal bullying can interfere with the development of self-esteem and self-efficacy, as well as overall physical and emotional development.[33] Furthermore, recent research has suggested that relational victimisation could have more deleterious effects on a child’s academic achievement than direct physical bullying due to: firstly, it being more hurtful and long-term; and, secondly, its classroom focus compared to direct bullying, which distracts the child from concentrating on school tasks.[34]
When technology enables a seamlessness of conduct and the blurring of bullying boundaries between school and home, the criminal and civil liability for perpetrators and schools in this novel environment is far from clear, particularly as regards the extent of the school’s duty of care beyond school hours and the school’s virtual and physical gates. In Australia, with the exception of Division 8B of the Crimes Act 1900 (NSW), there has as yet been no dedicated legislative response to cyberbullying,[35] unlike the situation in the United States.[36] The various bases for legal liability that do exist in Australia will now be discussed.
It is quite clear that, in extreme instances, cyberbullying can constitute criminal conduct on the part of the perpetrator, especially when the behaviour is seriously threatening, harassing or intimidating. While criminal sanctions may be apposite to more instances than might generally be appreciated, very few young people seem to realise the criminal potential of anti-social behaviour in the use of technology. However, media reports and other accounts have recently highlighted that parents, teachers and the community more broadly are increasingly inclined to expect that the criminal law will provide an appropriate legal response. For example, Meadows et al reported that six Grade 8 children were charged with harassment, four also charged with making terrorist threats.[37] The children had ‘derided classmates about their weight and threatened students online, telling one, ‘You'll be needing an intraocular lens when I stab a skewer through your head.’ They were found guilty and sentenced to community service and probation. Tellingly, when questioned about their conduct, the eighth graders ‘said, 'I didn't know any of this was going to happen...[we] believe[d] [instant messaging] IM is private and fleeting.’ In Australia more recently, there have been the first cases of adults being prosecuted for ‘trolling’ — defacing online community sites — in two reported instances posting offensive material on Facebook tribute sites.[38]
Whilst criminal sanctions might seem an extreme response, it is not inappropriate for all stakeholders — young persons, parents, schools and education authorities — to be aware of the potential for criminal liability, especially when the consequences of the cyberbullying conduct are serious for the target and/or where there is simply no other basis on which the dangerous conduct might be impeached, occurring as it frequently does beyond temporal and physical school boundaries. The latter, in particular, is where an understanding of the potential reach of the criminal law can be quite powerful; especially in circumstances where it is otherwise difficult, if not impossible, for schools to manage the fallout from cyberbullying when what occurs off-campus impacts negatively on the school learning environment.
While there is no specific criminal offence that targets bullying per se, the type of cyberbulllying here described is no more or less than another manifestation of personal violence or harassment, albeit in the context where the offline world of violence (or threats of violence to person or property) has moved online. Many of the crimes that may be committed correlate with the civil remedies available (for example, criminal assault, criminal defamation, criminal harassment), although naturally the criminal standard of legal proof is higher (beyond reasonable doubt) than for civil actions (the balance of probabilities). The definitional essence of bullying conduct (referred to above) — the intent to hurt, the imbalance of power that exists, the repetitive nature of the conduct and that victims are unable to defend themselves — lends itself easily to a criminal analysis. While the criminal law, like the civil law, is still playing catch up in this area of criminal cyber activity, it does not require any great stretch of the prosecutorial imagination to reconceptualise types of harassment that occur in the online communities as the well known criminal offences of assault, threats, extortion, stalking, harassment, indecent conduct, child pornography, computer hacking and misuse, and the like, while an increasing array of new offences, such as torture, voyeurism, cyberstalking, and the telecommunications offences, expand the reach of the criminal law to capture young and old offenders alike.
This section will first discuss the circumstances in which the school-aged cyberbully will be held criminal responsible for their conduct and then will turn to examine several of the more fertile grounds for criminal liability when cyberbullying occurs on a social networking site or blog. In the course of this discussion, the major Australian criminal codes and statues will be canvassed.[39]
It is a fundamental proposition of the criminal law that a perpetrator must commit the proscribed conduct concomitant with having the requisite guilty mind or intent. The latter focus on guilty intent is commonly referred to as ‘criminal responsibility’. One of the reasons a person may not be criminally responsible for criminal conduct is by reason of their ‘immature age’. While young offenders might generically suffer from a degree of immaturity in the sense of underdeveloped empathy skills, lack of appreciation of the gravity of their conduct, and reduced ability to control their impulses, the criminal law is generally not concerned with those aspects of (im)maturity but, rather, focuses strictly on an age threshold for the imposition of criminal liability.
At common law, the age of criminal responsibility is seven years of age. This age has been raised by statute in all Australian jurisdictions to 10 years of age, meaning a child under 10 will never be criminally responsible, while those aged between 10 and 14 years may be if the prosecution can prove beyond reasonable doubt that the child knew they ought not to have committed an offence; that is, that s/he knew that it was a wrong act of some seriousness, as distinct from an act of mere ‘naughtiness or childish mischief’.[40] Young people aged 14 and over are deemed to have the requisite capacity and are thus criminally liable for their conduct.
In practice today, most children aged 10-13 are found criminally responsible and with, for example, 52% of blogs being developed and maintained by teens aged 13-19 as noted above,[41] the question of criminal responsibility as an impediment to prosecution will rarely arise.
Under the Criminal Code Act 1995 (Cth) (‘CCA (Cth)’), offences have been enacted proscribing the misuse of telecommunication services[42] to menace, threaten or hoax other persons. These provisions are a potent weapon against electronic harassment, including cyberbullying by an entry on Facebook or some other social networking site or blog, where the bully targets either students or teachers for intimidation. For example, s 474.16 CCA (Cth) makes it an offence for a person (the bully) to send a hoax communication intending to induce a false belief that an explosive has been left somewhere. It is salutary to remember that one of the two students involved in the 1999 Columbine High School shootings in the US had set up a website on which he made threats and discussed violent activities. It is unfortunately not difficult to imagine such criminal activity being similarly anticipated online by young persons again today.
Under s 474.15 CCA (Cth), it is an offence for a person (the bully) to use telecommunication services, including the Internet, to threaten to kill or to cause serious harm to another person (the target) or to a third person, if the bully intends the target to fear that the threat will be carried out.[43] ‘Fear’ is defined broadly in the section to include apprehension, while ‘threat’ is defined as including ‘a threat made by any conduct, whether express or implied and whether conditional or unconditional’. It is not necessary that the target actually fear that the threat will be carried out.[44] In the first case of its kind in Britain, in 2009 an 18 year old woman who posted death threats on her Facebook page targeting another 18 year old whom she had been bullying for four years, was sentenced to three months in a young offenders' institution for harassment.[45]
Section 474.17 CCA (Cth) makes it an offence to use telecommunication services to menace, harass or cause offence. It is irrelevant whether the menacing, harassing or offensiveness is due to the method of use (for example, multiple postings on a social networking site or blog) or by the content of the communication or both, so long as reasonable persons would regard the use as being, in all the circumstances, menacing, harassing or offensive.
Other sections in the CCA (Cth) also provide for possible criminal sanctions in the social networking context. For example, s 474.22 prohibits using a carriage service for child abuse material (such as posting images of sexual assault and other abuse). An example of the latter surfaced in Australia in 2006 when segments of a video were posted on YouTube showing a disabled 17-year-old girl being assaulted and humiliated by a gang of youths who urinated on her and set hair alight.[46] Following that incident, in 2007 it was reported that the Victorian Education Services Minister had banned student access to video-sharing websites such as YouTube in all of that state’s 1600 state schools ‘in a bid to tackle the growing problem of cyber bullying’.[47] The liability of the hosting platform (for example, YouTube, Facebook, Google Video) in this context is beyond the scope of this article, though it is noted that, in Italy, three Google executives were recently convicted of a criminal privacy violation for the 2006 hosting a video of an Down Syndrome boy being bullied and taunted by four classmates.[48]
In October 2006, schools in NSW were advised by the Education Department that making threats against teachers and students on Internet blog sites, or by other inappropriate use of the Internet, telephones or text messages, was criminal conduct.[49] It was reported that a NSW Year 9 student had been suspended for two days for posting inappropriate comments about teachers on an Internet site. The Sydney Morning Herald[50] quoted a Sydney high school memo that was said to have been sent to parents requesting that they monitor students’ access to the Internet and warned that ‘cyber bullying is illegal’. The memo also warned that the blog entries were defamatory and that students have been suspended from school for intimidation and cyber bullying.
The stalking, intimidation and harassment offences that have proliferated nationally and internationally over the past decade provide further fertile ground for the imposition of criminal liability in cyberspace. Stalking has been described as the ‘pursuit by one person of what appears to be a campaign of harassment or molestation of another’.[51] The drivers for anti-stalking legislation have been well documented in a myriad of contexts — such as celebrity stalking, personal and workplace relationship stalking, or random, stranger stalking — and its prosecution often targets conduct that would otherwise be beyond the reach of the criminal law.[52] Common examples include following the stalkee, sending them articles, waiting outside or driving past their homes or places of work, or repeated contact by phone, email or text. Of specific relevance for cyberspace is that these offences have proven very valuable as part of a larger strategy to contain domestic violence and like behaviours (such as bullying), where an imbalance of power is exploited in quite unimaginable and bizarre, but extremely frightening, ways.
The particular effectiveness of these criminal remedies in the cyberbullying context is threefold. First, the breadth of potential stalking behaviour that these offences seek to capture is rarely found to be wanting:[53] conduct that offends the provisions need not be criminal in itself (for example, because the element of threat is merely underlying or implicit, rather than overt) and the net of liability cast is exceptionally wide, even if the cyber behaviours were not imagined at the time of the legislative drafting. Secondly, though jurisdictional variations for liability exist as to the requisite intent on the part of the offender and state of mind (if any) required of the victim, it is usually sufficient that the offender, by means of their repeated and unwanted attention, intends to induce in the target an apprehension or fear of violence or harm (which in most of the Australian states includes the intention to cause the target either physical or mental harm). Thirdly, the immediacy element that is often also problematic in constituting this conduct as a threatened criminal assault is irrelevant. As a criminal law response therefore, (cyber)stalking is one of the better solutions in the cyberbullying context: the absence of an immediate physical threat is no impediment to prosecution, while the very essence of cyberbullying, to cause emotional, rather than physical, harm and distress is central to the offence.
All Australian jurisdictions have anti-stalking legislation proscribing behaviour calculated to harass, threaten or intimidate.[54] Each jurisdiction’s stalking response is subtly different.[55] Generally, however, it may be said that most require the offender to have engaged in a conduct or a ‘course of conduct’, consisting of one or more instances of stalking-type acts (though one protracted act is sufficient in Queensland, while ‘repeated’ instances are required in some states) with the intention (variously) of causing harm, of arousing fear or apprehension of a threat to safety, of intimidating, or of frightening the victim. The focus on the mental state of the victim also differs between jurisdictions, ranging from silence, through explicit statements about the irrelevance of the effect on the victim, to the Northern Territory situation where the victim must actually have been in fear. Generally in the Australian jurisdictions, the mental state of the victim is irrelevant to the commission of the offence.
Some statutes contain lengthy, inclusive lists of the types of conduct that might constitute stalking, harassment or intimidation. In 2003, the NSW Law Reform Commission (NSWLRC) usefully collected together the types of conduct that, at that time, amounted to stalking or harassment in jurisdictions other than NSW as including:[56]
• following, loitering near, or approaching a person;
• loitering near, watching, approaching or entering a place where the victim lives, works or visits;
• keeping the victim under surveillance;
• telephoning, sending electronic messages to, or otherwise contacting, the victim or any other person;
• interfering with, threatening or hiding property in the possession of the victim;
• giving offensive material to the victim or any other person, or leaving it where it will be found by, given to or brought to the attention of, the victim or another person;
• stopping, confronting or accosting a person in a public place; or
• forcibly hindering or preventing any person from working at or exercising any lawful trade, business or occupation.
This array of behaviours has been held to cover an enormous range of conduct, as suggested above, from the frightening to the downright bizarre. What is of particular interest regarding liability of the social networking cyberstalker is that all Australian jurisdictions now, with the exception of WA, have made specific provision for cyberstalking, though to varying levels of sophistication. It can be argued quite forcefully that many of the types of stalking acts the NSWLRC identified above (originally conceived of as off-line behaviour) could, without too much of a stretch, include the types of online bullying instances that have occurred. This is especially so when it is remembered that most of these legislative lists are inclusive (and not prescriptive) of stalking-type acts — for example, following, loitering, watching, keeping under surveillance, sending messages or otherwise contacting, interfering with property, leaving offensive material where it might be found, confronting another in public cyberspace. However, it is certainly simpler and clearer from a prosecutorial perspective for cyber examples to be included in legislation.[57]
The application of these provisions to instances where social networking bullies post cruel messages, insults, threats or polls, or upload nasty images, or manipulate the content of another user or blogger (for example, by assuming the target’s identity and posting inflammatory content posing as the target) is very readily apparent. If done on more than one occasion with the requisite intent, this behaviour will easily satisfy the elements of the stalking, intimidation or harassment offence, subject then to the technical challenge of identifying the more sophisticated, anonymous abuser in a cyberspace investigation. One particular limitation on the efficacy of the stalking provisions that is only satisfactorily dealt with in a minority of provisions[58] — that of the extra-territorial operation of these sections (for example, where some aspects of the stalking conduct via the Internet occurs beyond state or territory boundaries or internationally) — is of less concern in the present context where the scenarios are most likely to be played out between teenage peers who know and bully each other in closer compass.
In April 2010, a high profile prosecution for cyberstalking in Victoria made news headlines. Twenty-year-old Shane Gerada was a former friend of his target, Allem Halkic, who ultimately committed suicide. Gerada pleaded guilty to stalking the 17-year-old Allem by way of sending several threatening texts and received an 18-month community-based order.[59]
Just as derogatory or denigrating material uploaded on a social networking site or blog might constitute civil defamation of the target (as discussed in 4.1.1 below), so too it might constitute criminal defamation, though criminal prosecutions are very rare. With the exception of Victoria, where a common law offence of criminal libel subsists,[60] in Australia the common law offence of criminal libel has been abolished and all Australian jurisdictions have enacted a statutory offence replacement, generally called ‘criminal defamation’, except in Victoria where the retained common law offence is complemented by the statutory offence of publishing false ‘defamatory libel’.[61] For the purposes of most of these the criminal offences, ‘publish’ and ‘defamatory’ have been given the meaning that they have in the law of tort (as modified by the various uniform defamation enactments).[62] These meanings are discussed below at 4.1.1.
(a) Assault by threat of force
It is worth recalling in the cyberbullying context that a criminal assault may be committed by the threat of force — by putting the target in fear of imminent violence (previously the common law offence of ‘assault’ to be compared with ‘battery’) — and without the necessity for there to be any actual direct or indirect application of force. The offence of common assault exists in all jurisdictions.[63]
The elements of assault by threat of force vary between jurisdictions but, however constituted, with one serious exception, may well be made out in the cyberbullying context. Generally what is required is that:
• the offender attempt or threaten an application of force;
• the threat must be evidenced in some way; and
• the threat creates an apprehension in the victim of present or immediate harm by reason of the offender’s apparent ability to carry out the threat.[64]
Subject to the issue that has been alluded to above regarding the interpretation of the last requirement for the immediacy of the threat (common law), or the offender’s ‘present ability’ to carry out the threat (Code jurisdictions), the first and third of these elements would seem to lend themselves to the cyber bullying context.
The major (and potentially fatal) determinant of liability for criminal assault in cyberspace will lie in a consideration of what conduct is sufficient to constitute the threat; specifically whether the evidencing of the threat by the mere words or images in a social network site or blog, rather than by a face-to-face bodily act or gesture, will be sufficient. The issue is specifically resolved against liability under the Tasmanian Criminal Code Act 1924: s 182(2) provides that words alone cannot constitute an assault. The assault definition sections in Queensland[65] and Western Australia[66] both refer to ‘threatening by physical gestures’, which would seem to preclude words or pictures on an online site being sufficient. However, those three states aside, the potential for criminal liability to attach for assault by threat of force made by online post is on much sounder footing elsewhere: South Australia specifically includes ‘threatens by words or conduct’,[67] while the Northern Territory allows that the threat may be ‘evidenced by bodily movement or threatening words’.[68] At common law words are sufficient.[69]
(b) Bodily harm (and the like)
Another possible criminal sanction in this context is that the offender has, by their bullying conduct, caused some other form of criminal harm. The most likely candidates for this offence type would be causing:
• ‘bodily harm’;[70]
• ‘actual bodily harm’;[71]
• ‘harm’;[72] or
• ‘injury’.[73]
The major issue for the imposition of this basis of liability is whether the harm, however it is described — grievous, bodily, actual bodily, serious, etc — includes psychological harm. Uncertainty surrounding this was one of the drivers for enacting the stalking legislation, described above. There has been some movement in this area at common law, which should be influential in interpreting the current Australian provisions. In 1998, the English House of Lords held that ‘bodily harm’ could include mental harm or psychic injury provided the latter amounted to a ‘recognisable psychiatric illness’, which in that case included clinical anxiety and depression.[74] In so holding, their Lordships were much influenced by the nervous shock cases in the law of negligence[75] and held that the term ‘bodily harm’, as used in the Offences Against the Person Act 1861 (UK), ‘must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury’.[76] There would seem to be no reason why the like Australian provisions proscribing the causing of bodily harm (and similar) would not import a similar interpretation allowing for liability in the blogging context, if the bullying conduct caused a recognisable psychiatric injury.
(c) Crimes Act 1900 (NSW) Division 8B: Assaults etc at schools
The Crimes Act 1900 (NSW) was amended by the Crimes Amendment (School Protection) Act 2002 (NSW)[77] to make specific criminal provision in s 60E for assault, stalking, harassment or intimidation of any school staff or student while attending the school. This section is unique in the Australian criminal law, but is restricted in its reach to staff and students while ‘attending the school’.[78] As such, s 60E will only be of limited application in the cyberbullying context unless the conduct actually occurs on the school premises or while entering or leaving school premises for the purposes of school activities.
Mirroring the Commonwealth threats provision in s 474.15 of the CCA (Cth) discussed above, every Australian state and territory has threat offences which are clearly applicable in the blogging context, where the conduct does not result in physical injury but a target is put in fear of personal violence against them. The most obviously relevant, and most serious, threat is the threat to kill or to cause serious harm. For example, s 31 of the Crimes Act 1900 (NSW) makes it an offence to maliciously send or deliver, or cause to be received, any document threatening to kill or inflict bodily harm. The NSW section makes it clear that the threat to kill must be in writing, which is also the case in Queensland and Tasmania.[79] The threat can be constituted by words or conduct in the other Australian jurisdictions.[80] It is an element of the offence in all jurisdictions except Queensland[81] that the offender/bully intended to cause the victim to fear that the threat would be carried out, though some statutes also allow that proof of recklessness as to that fear being caused is sufficient intent.[82] The ACT and the NT also impose an objective requirement of reasonableness as regards the fear that the threat will be carried out.
Less serious threat offences are also provided for in all Australian jurisdictions, variously proscribing a cyberbully from threatening to harm, injure or endanger a target to varying levels of gravity: threatening, for example:
• ‘bodily harm’;[83]
• ‘grievous bodily harm’;[84]
• to destroy or damage property;[85]
• to ‘do any injury, or cause any detriment’;[86]
• ‘detriment on any kind’;[87]
• to ‘inflict serious injury’[88]
• to cause ‘harm to the person or property of another’;[89] and
• to ‘injure, endanger or harm.[90]
An example of a successful criminal prosecution for a similar offence of uttering threats to cause death or serious bodily harm was the British Columbian cases of R v DW and KPD[91] and R v DH,[92] where the harassment ultimately caused the accuseds’ target, a Grade 9 classmate, Dawn Marie Wesley to commit suicide.
There is a variety of other potential bases for criminal liability, including liability as a ‘party’ to an offence (for example, aiding, counselling or procuring), for an attempt to commit an offence and for specific other individual offences such as torture under the Criminal Code 1899 (Qld)[93] and the intimidation offence created by the Crimes Act 1900 (NSW).[94] Most usefully in the social networking and blogging context has been the recent criminalisation of the non-consensual visual recording of a target when the latter is engaged in a private act or in a private place (such as showering or toileting at school) and the distribution of those recordings (for example, by posting on a social networking site or blog).[95]
More alarmingly, there have been recent reports of children as young as 12 and 13 being charged with child pornography offences for ‘sexting’ — sending explicit photos of themselves or others via the Internet or mobile phones.[96] This is high-end criminalisation and not the purpose for which these offences were enacted. In Australia, such a conviction would result in the child’s name being placed on the Sex Offenders’ Registrar.
The inappropriateness of attempting to force existing criminal laws to fit emerging cyberbullying conduct clearly beyond their original remit was also starkly highlighted in the US last year in the ‘Lori Drew MySpace case’, where another student’s mother, Drew, created a fake MySpace account in the name of a teenage boy to first befriend and then harass and taunt 13 year old Megan Meier, who subsequently committed suicide. Drew was initially convicted of three misdemeanour counts of intentionally accessing computers without authorisation, on the basis she had violated MySpace’s terms of service (by way of the false profile created). Her conviction was overturned on appeal, the court holding that such an outcome set a dangerous precedent by potentially criminalising breaches of contract and a multitude of quite innocent and common terms of service violations.[97]
In some circumstances the contributions to a social networking site or blog for the purpose of bullying may result in civil liability for the perpetrator. Where the blog or website is under the control of a school it may also result in liability for the school authority — which, in case of a public school, will usually be a state or territory government and in the case of a private school will normally be an organisation such as an incorporated company, a church diocese or trust.
As has been noted, cyberbullying, like any other type of bullying, is an intentional act of the perpetrator. Depending on the circumstances, such liability may be based on a range of intentional torts including defamation, assault, intentional infliction of psychiatric harm and, possibly, invasion of privacy. Where the perpetrator is a child, his or her age will be no barrier to civil liability if, as Windeyer J stated in McHale v Watson,[98] he or she ‘was old enough to know that his [or her] conduct was wrongful — that is to say if, in the common phrase, he [or she] was old enough to know better.’ The decision whether to bring an action against a child perpetrator is therefore more likely to involve more practical considerations such as whether he or she has sufficient financial resources that he or she is worth suing.
On the other hand, the parents of a child perpetrator may be perceived as having greater resources to meet any compensation claim. However, whatever the position in other countries, the High Court has held that under Australian law, parents are generally not legally liable for the acts of their children.[99] The court held that parents will only be liable where they are themselves in breach of some duty to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury. The standard of care is that of the reasonably prudent person, and whether it has been fulfilled or not is to be judged according to all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected. This latter requirement will be significant in the case of cyberbullying that occurs whilst the child perpetrator is under, or ought to be under, parental control, such as a child accessing a school-hosted blog from home. It is suggested that allowances may need to be made in such a case for circumstances such as a parent’s measure of computer literacy and where the cyberbullying involves obscure terminology, slang or code.
A perpetrator who uploads images or discloses information on a social networking site or blog which leads to the denigration of the target may be held liable for defamation. Under the uniform defamation legislation enacted by all jurisdictions in Australia,[100] the common law is now to be applied when determining whether defamation has been established. This requires proof that a defendant has published defamatory matter that is reasonable referable to the plaintiff. ‘Publication’ in this sense merely means communicated to at least one other person, which will be easily satisfied in the case of a contribution to a social networking site or blog. Further, the matter need not refer to the plaintiff by name but may consist of a photograph, drawing or other image or otherwise which may be reasonably understood as identifying the plaintiff. Finally, matter may be defamatory if it exposes the plaintiff to (1) hatred, contempt or ridicule; (2) induces others to shun or avoid the plaintiff; or (3) lowers the plaintiff in the estimation of others whilst disparaging the plaintiff in the sense of attributing moral blame to the plaintiff for some disagreeable conduct or attribute. It is likely that cyberbullying using a social networking site or blog which results in, for example, the ostracism, isolation, humiliation or embarrassment of the target will satisfy at least one of these three tests — particularly the first or second — and therefore gives rise to liability. In this connection, it is no defence that the publication on the blog was only meant in jest or fun: it will be regarded as defamatory nonetheless.[101] This is because it is the interpretation of a reasonable reader/viewer of the publication, not the intention of the publisher, that is taken into account.[102]
Cyberbullying in the form of threats of violence posted on a social network site or blog which cause a target to apprehend violence may also give rise to the tort of assault giving rise to a right to compensation. This form of trespass to person requires an act by the defendant which requires the plaintiff to apprehend immediate contact with his or her person.[103] The plaintiff must believe on reasonable grounds that the person making the threat has the present means of carrying any threat of force into effect. This may be easy to satisfy where the parties are in close proximity. However, it has also been recognised that a plaintiff may be made to apprehend immediate physical violence in the case of threats made over the telephone.[104] If an entry on a social network site or blog threatened that the target was going to be killed, bashed or the like in the very near future — perhaps during recess or after school — it may be that this requirement has been satisfied. However, the more generalised any threat of violence, or the more remote the threat of violence from any likely infliction, the more difficult it may be to argue that the defendant has committed an assault.
It has been noted that bullying entails the perpetrator intending to cause the target to suffer harm. Consequently, a target of cyberbullying may have a claim based on the rule in Wilkinson v Downton[105] for the intentional infliction of physical harm. The case concerned a defendant who, by way of a practical joke, told the plaintiff that her husband had been involved in an accident and that she should hurry and take pillows to him. The plaintiff suffered psychological harm as a consequence, and the defendant was held legally responsible for this harm. This doctrine was formulated in an age when psychiatric injury was believed to be a form of physical harm, and despite its reference to ‘harm’ it has been subsequently interpreted as being linked to psychiatric injury rather than harm in general, including physical harm: see, for example, Janvier v Sweeney.[106] It has not figured largely in Anglo-Australian case law, unlike the comparable cause of action for an intentional infliction of emotional distress in the United States, where a substantial body of jurisprudence has since developed.[107] By contrast with the American cause of action, it is clear that to establish a Wilkinson v Downton claim it is necessary to show that the plaintiff has suffered harm in the form of a diagnosable psychiatric condition rather than a more transient emotional response.
Accordingly in Australia, while of the intent of a cyberbully will be to cause the target to suffer harm in the form of stress, anxiety or fear, it will only be more severe reactions which amount to psychiatric conditions that may form the basis of a claim under the rule in Wilkinson v Downton. It is especially worth emphasising that Wilkinson was itself a case in which a practical joker, whose joke went too far and resulted in injury, was held liable. This is a salient warning for cyberbullies who engaged in the behaviour because they believe they are ‘having fun’ or playing a joke on the target.
Cyberbullying by way of contributions to a social networking site or blog may invade the privacy of the bullying target in two ways: it might contain threatening material or it may give widespread publicity to private information. In either case the contributions may result in the target suffering harm in the form of distress, embarrassment and/or humiliation. However, a separate cause of action for invasion of privacy is yet to be recognised by a superior court in Australia. Instead, an individual who claims that his or her privacy has been invaded is forced to rely on other causes of action such as trespass to person or land, or breach of confidence.
Nevertheless, the High Court of Australia has not dismissed the idea of a common law tort for breach of privacy.[108] Moreover, a Queensland District Court Judge was prepared to uphold a claim for invasion of privacy in circumstances involving a man who was alleged to have stalked his former lover. In Grosse v Purvis[109] Skoien SDCJ noted that in the case of most crimes against the person there was a corresponding civil cause of action which the victim of the crime was able to pursue against the perpetrator. After finding that a criminal offence of stalking was made out on the facts, his Honour was prepared to recognise a civil claim for the invasion of the privacy for the victim of the stalking. In doing so he drew on the American tort of the invasion of privacy, which has been described as in fact representing four separate torts: unreasonable intrusion upon of the plaintiff’s solitude or seclusion, public disclosure of private facts, portraying the plaintiff in a false light to the public, and appropriation of the plaintiff’s identity. His Honour[110] envisaged the cause of action for invasion of privacy as having the following elements:
(a) a willed act by the defendant;
(b) which intrudes upon the privacy or seclusion of the plaintiff;
(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and
(d) which causes the plaintiff detriment in the form of mental physiological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.
Even if the tort did not take these precise elements, an argument may still be made for its recognition.[111] It may be that such a tort can be seen as an on-development of the tort of harassment with which Australian courts have flirted in the past.[112]
If it were the case that a tort of invasion of privacy were recognised in such a form then it would appear well-suited to address claims of cyberbullying. One of the features of cyberbullying is its ability to reach the target at all hours of the day and in previous safe havens such as the target’s home. A tort that was designed to safeguard the plaintiff’s reasonable expectation of privacy in the form of his or her solitude would therefore directly confront such behaviour.
An action for invasion of privacy in the form of disclosure of private information has now been recognised in England and New Zealand, although on different bases. In England the action, now known as a claim for ‘misuse of information’, has evolved from the action for breach of confidence and arises where the claimant's reasonable expectation of privacy outweighs any public interest in disclosure.[113] The action has been developed in accordance with the European Human Rights Convention, which provides a guarantee for both a right to privacy and a right to free speech. By contrast, a majority of the New Zealand Court of Appeal thought that advances in technology, changing societal attitudes and a greater focus on human rights at an international level provided a strong impetus for development of the common law to recognise an action for invasion of privacy in a similar form. Drawing on the American model, the court held that an action was available where a plaintiff could show: (1) the existence of facts in respect of which there is a reasonable expectation of privacy; and (2) publicity given to those private facts that would be considered highly offensive to an objective reasonable person.[114]
In Australia, an action for invasion of privacy for disclosure of private facts was recognised by a Victorian County Court in Jane Doe v ABC.[115] The case concerned a media defendant that revealed the private details of a rape victim, which resulted in the victim suffering a relapse of the post-traumatic stress disorder that she had developed following the attack. In addition to recognising a claim for breach of privacy when there was a reasonable expectation of privacy, Hampel J upheld the claim on a number of other bases, including breach of confidentiality. Subsequently, the Victorian Court of Appeal in Giller v Procepets[116] resisted an invitation to take a ‘bold step’ in allowing a claim for breach of privacy in a case involving a plaintiff seeking compensation from her ex-lover who distributed a copy of a videotape of a couple engaged in sexual relations, and instead opted to award the plaintiff damages for a breach of confidence. The case may be seen as reflecting an unwillingness to expand the law into new territory in cases which may be fitted within existing causes of action.
Accordingly, in the case of information posted on a social networking site or blog much will depend upon the circumstances and the nature of the particular information. In a case where the perpetrator is a confidant who betrays a confidence by posting or uploading information entrusted to him or her by the victim, Giller v Procepets will stand as authority for the recovery of damages for any distress that the victim suffers as a result. Similarly, where the perpetrator was not initially privy to the secret but acquires information in circumstances where it is reasonable to expect that it is confidential, an action may still lie.
However, as Gleeson CJ pointed out in Lenah Game Meats v Australian Broadcasting Corporation[117] there is a difference between information that is confidential and that which is private. Information may be in the public domain but nevertheless of a nature which an individual may wish to be kept private. In such a case an action for breach of confidence will not be available, and the question will be whether Jane Doe v ABC should be followed in recognising an action for invasion of privacy in such circumstances.
A separate tort, or torts, for invasion of privacy,[118] or an application of the action for breach of confidence, has advantages over the two preceding causes of action which make them appropriate vehicles for seeking redress against a cyberbully posting hostile material on a social networking site or blog. There would be no need to show an imminence of violence, as required for assault, nor the long lasting diagnosable psychiatric illness required for a Wilkinson v Downton action.
A target of cyberbullying who is seeking reparation for damage to his or her reputation or injuries that he or she has suffered may, where that damage or injury has been suffered in a school context, view the school itself as a more attractive defendant. A school authority may be perceived as likely to have greater resources to meet any compensation award than the perpetrator, whether through insurance or the backing of government finances. However, the only causes of action that may be available may be limited to defamation and negligence. In some circumstances where the perpetrator of the cyberbullying is a teacher or other school employee, the school may incur vicarious liability for the wrong.[119]
Reference has already been made to the essential elements that a target of cyberbullying on a social networking site or blog would need to have established in order to sue the perpetrator for defamation. Naturally an action may lie against a school authority on the same terms when it or its employee is responsible for placing that defamatory material on a social networking site or blog. A school authority may also be held responsible for defamatory matter placed on a social networking site or blog hosted by third parties such as other students.
There is longstanding authority that a defendant who knowingly allows defamatory material to remain on his or her notice board will be held to be as much responsible for the defamation as the person who posted it.[120] This has been extended to computer bulletin boards[121] and would also apply to a social networking site or blog. However, in Cubby Inc v CompuServe Inc[122] and Zeran v American Online Inc[123] a lack of editorial control was an important factor in not holding companies that maintained bulletin boards liable for material posted on it. By contrast, in the recent English case Kaschke v Gray,[124] the owner of a blog was held liable for defamatory material posted on it because he had exercised editorial control over posts, including promoting certain entries to a more prominent position on the site and checking pieces for spelling and grammatical mistakes. This meant that the owner’s activities went beyond mere storage. It would be likely that a school hosting a blog or website accessed by students and staff will (or at least should) monitor and retain editorial control over the site. A school authority will therefore be held responsible for defamatory matter that it knows or ought to know has been posted on it.[125]
A plaintiff seeking to establish an action for negligence is required to show that the defendant owed the plaintiff a duty of care, and the defendant breached that duty with the result that the plaintiff suffered damage. If the action is made out the defendant may seek to rely on a defence, which in the case of cyber bullying in a school context is likely to be limited to contributory negligence.
While there have been a number of cases that have considered claims against school authorities for alleged breach of duty for failure to prevent face-to-face bullying, there has yet to be a case based on any form of cyberbullying. Several cases of face-to-face bullying have raised issues which the courts have found difficult to resolve. It is likely that cyberbullying, including that utilising a social networking site or blog, will pose further challenges.
(a) Duty of care
It is well established that, at common law, a school authority owes a non-delegable duty of care towards its students.[126] This duty requires not only that the school authority employ properly qualified staff but also that it is sure that reasonable care is taken of them.[127] This duty has been recognised as extending to protecting the student from the conduct of other students.[128] The ‘non-delegable’ nature of the duty means that the school authority is unable to delegate the legal responsibility for discharging the duty of care to another person such as a school principal, even if that person is a competent delegate. Thus, even if as a matter of fact school authorities must delegate the task of exercising care for students to school principals and teachers, as in fact they must, any legal liability continues to reside in the school authority.[129] This duty has been recognised as embracing, not only an obligation to protect a school’s students from risk of physical injury, but also psychiatric injury (or ’recognised psychiatric illness’, as it is known, to distinguish it from more transitory emotional or mental distress).
While the existence of the duty may be without doubt, more problematic may be the scope of the duty in terms of geography and time. In Australia it has been held that the existence of the duty depends upon ‘whether in the particular circumstances the relationship of school teacher and pupil was or was not been in existence’.[130] The test therefore does not depend upon whether the student is on school premises or whether any accident occurs during school hours. It also does not depend on whether the school authority has available to it, for example, sufficient teachers to provide proper supervision. In Geyer v Downs[131] a student who had arrived at the school early was injured when struck by a softball bat. It was held that even though school hours had not commenced and the principal had no teachers available to assign to supervisory duties, the relationship of school teacher and pupil had come into existence by virtue of the principal's attempt to prescribe rules governing before-hours behaviour (for example, sit quietly, no playing of sports, etc).
There have been cases which have held that the duty has been owed despite the incident resulting in injury occurring outside school hours and beyond on school premises. For example, in one New South Wales case,[132] despite an injury being sustained 20 minutes after the end of the school day at a bus stop situated 400 metres from school grounds, the incident was regarded as falling within the school’s duty of care, which had been breached because:
• in the circumstances the school authority knew that its students routinely used the bus stop, which was located near a high school; and
• the school authority ought to have known of the mischief that was likely when children of different ages and from different schools mix without adequate supervision.
Indeed, one judge suggested that if the school authority ‘were aware ... that on a particular journey older children habitually and violently bullied younger children, the duty may well extend so far as to require the school to take preventative steps or to warn parents. This duty would be founded in the relationship of teacher and pupil’.[133]
Such principles will be of relevance in the as yet untested case of liability for cyberbullying by use of a blog or other website, including also an educational, collaborative wiki. There is no doubt that the scope of a school’s duty will embrace bullying via entries made to a blog, wiki or other website hosted on a school server during school hours using school computers. However, the duty is likely to extend further. It is also likely to catch entries made on a school-hosted blog, wiki or other website which is accessed remotely by a student, perhaps from home or some other location away from school premises. This extension would be based on factors such as the school’s control over the hosting sever and its grant of remote access to a student user under instructions or conditions of use which may be regarded as indicia that the relationship of teacher and pupil is in existence in the circumstances, notwithstanding the time or place the blog, wiki or other website is being accessed. The duty may also be seen as extending to students using school computers on school premises, whether during school hours or not, to access sites hosted on third party servers (such as a Facebook profile or the like), where there are rules or instructions relating to use of these computers which may be sufficient to establish that, in the circumstances, the necessary relationship of teacher and pupil existed at that time. Instances of cyberbullying of a school student by a fellow school student occurring at a time when the relationship of teacher and pupil is not in existence must necessarily be the concern of parents or, if need be, the police. Thus a perpetrator who uses his or her home computer to post offensive material on a fellow student’s Facebook site, or who sets up a bogus Facebook profile to denigrate a fellow student, will not be caught within the ambit of the school’s responsibility. The mere fact that both are students of the school will not be sufficient to bring the matter within the scope of the school’s duty of care.
Naturally, however, the mere fact that a duty of care may be recognised as existing at the relevant time does not on its own necessarily mean that the school will be liable for any injury resulting from any cyberbullying that takes place. It would also be necessary for any plaintiff to prove the other elements in the negligence equation including proof of breach of that duty by the school and causation of the damage.
Normal fortitude
It has been noted that unlike face-to-face bullying, which may result in physical or psychological harm or both, cyberbullying may result in psychological damage only. One issue arising in relation to liability for psychiatric injury springs from the common understanding in the community that different people have different degrees of psychological tolerance to potentially harmful stressors.[134] Should a plaintiff be expected to conform to some standard of resilience or fortitude before he or she is entitled to recover damages, lest a defendant be held responsible in cases involving the merely upset suffered by someone who might be considered overly sensitive? In the recent case Tame v New South Wales,[135] the High Court rejected a requirement of normal fortitude as a pre-condition in all psychiatric injury claims decided at common law, contrary to the approach taken by previous judges such as Mason P in Morgan v Tame[136] and Lords Wright and Porter in Bourhill v Young.[137] A majority of the court held that the question of normal fortitude was best left as a consideration when judging whether the relevant damage was reasonably foreseeable in the circumstances. In the case at hand, which concerned a motorist who suffered a psychiatric illness resulting from a fear that a police officer’s error in recording a blood alcohol reading against her name would lead people to think she was in some way responsible for a car accident, because the plaintiff's reaction was considered to be so extreme, it fell outside the bounds of what might be considered to be reasonably foreseeable by the police officer. Only two judges, McHugh and Callinan JJ, suggested that ‘normal fortitude’ should be regarded as a precondition to recovery by a plaintiff in a psychiatric injury claim.
However, shortly after the High Court's judgment was handed down, the Federal government established an inquiry in order to review the law relating to negligence as a response to personal injuries owing to a perceived crisis in the insurance industry. The ‘Ipp Review’,[138] as it came to be known, was given an inordinately short time of only nine weeks in which to conduct the review of such an enormous area of law and to issue a report. One recommendation enacted by all Australian jurisdictions except Queensland and the Northern Territory was that there should be no duty of care not to cause pure mental harm (now described in the legislation as ‘recognised psychiatric illness’) unless, absent knowledge of particular susceptibility, the defendant ought to have foreseen that a person of normal fortitude might suffer psychiatric illness if care was not taken.[139] The recommendation was purportedly intended to give effect to Tame v New South Wales[140] but evidently represents a misreading of the case and in fact gives effect to the views of only McHugh and Callinan JJ.[141]
The result is that a plaintiff student who suffers psychiatric harm resulting from cyberbullying in an Australian jurisdiction other than Queensland or the Northern Territory must show, as a positive element of any claim, that he or she is a child of ‘normal fortitude’. When it is kept in mind that there is no medical legitimacy to the concept of ‘normality’ in the general community, let alone a ‘normal child’, the task becomes even more daunting. In other than clear cases, views are likely to differ widely regarding the level of aggressive interaction that may be accepted as beneficial and a part of natural development if the child is to develop into an adult who is able to cope with the pressures and demands associated with living in a modern society. The question arises of how much aggression a ‘normal child’ should be expected to endure before it is regarded as amounting to damaging bullying, without the benefit of legitimate medical evidence that he or she is of normal fortitude. In the final analysis this will be determined by the mere intuitive view of the judge hearing the case, whether or not informed by the intuitive view of any witnesses called.[142]
Standard of care
Classic descriptions of the duty of a schoolmaster include that of Lord Esher: ‘such care ... as a careful father would take of his boys’.[143] However, any equating of the standard of care expected from a teacher to that expected from a parent has been regarded as today being unrealistic. It may overstate the expectation in the case of a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of 30 or more children[144] while understating the expectation in the context of the professional training undertaken by teachers.
The first question when determining breach is whether the risk of injury was reasonably foreseeable in the circumstances, in the sense that the risk was ‘not insignificant’. The second question is whether a reasonable person would have taken precautions to avoid that risk. In determining this question the courts take into account the ‘negligence calculus’, which involves an assessment of the probability that harm would occur absent care; the likely seriousness of that harm; the burden of taking precautions; and the social utility of the risk-creating activity. If these factors indicate that a reasonable person would have taken precautions in the circumstances the breach question will resolve to whether the defendant in fact exercised the appropriate standard of care.[145] Further, in most jurisdictions when deciding what would be a reasonable response to a risk, the court is to defer to a ‘responsible body’ of expert opinion ‘unless no reasonable court would do so’.[146]
Accordingly the responses of a reasonably prudent school authority at least will now be informed by accepted practices in the teaching profession, unless judged unreasonable. It would be reasonable to expect reasonable supervision and monitoring of the use of computer equipment for those cases where the target and perpetrator are both on the premises of the school authority. The expected response in other cases may not be so clear. In all cases it would also be important to have an anti-bullying policy which expressly extended to cyberbullying, and for that policy to be put into practice including repeated reminders. Such policies could extend to the time the relevant relationship is in existence, whether on school premises or not. School-hosted blogs, wikis and other websites may need to be routinely monitored for potentially deleterious content, although this cannot be expected to be a complete panacea since there may be content which may not be reasonably understood to constitute cyberbullying without a full understanding of context. For example, obscure terminology, slang or code may be used. Indeed an absence of acknowledgement of entries may be part of a campaign of exclusion or isolation of the target. If remedial action is required then it must be taken and applied in a consistent fashion so that potential bullies do not think that such a policy might be the zero tolerance in name only. It is also important to encourage a culture in which bystanders do not stand idly by whilst bullying, including cyberbullying, takes place and at least have an avenue for the reporting of instances of this misbehaviour.
Causation
In Australia, the ‘but for’ test for causation has been enshrined in legislation in most jurisdictions.[147] Accordingly, the child plaintiff is required to show that any injury would not have been suffered but for the school’s particular breach of duty. It would be insufficient to merely identify a breach of duty such as a failure to supervise if the failure to supervise did not materially contribute to the injury.
An additional issue concerning causation is that some of the common symptoms of cyberbullying might reasonably be expected to be displayed by an adolescent as a result of a variety of causes, including simply those associated with growing up, rather than any bullying behaviour. There may be a tendency, consciously or subconsciously, to attribute all ailments of a psychological or psychosomatic nature to the cyberbullying. Accordingly, distinguishing between psychological or psychosomatic injuries linked to the breach of duty and those resulting from other causes will be an important threshold task.[148]
Contributory negligence
If a school is to have any defence it will lie in contributory negligence. In the six states a plaintiff’s contributory negligence is now to be based on the same approach to a defendant’s negligence, that is reasonable foreseeability of risk and the precautions a reasonable person would take (if any) to that risk, taking into account the ‘negligence calculus’.[149] This reinforces the traditional test based on the foreseeability of a reasonable and prudent person, which still applies in the territories.
Practical precautions by a plaintiff to prevent being injured by bullying normally might include reporting the cyberbullying to the relevant authority and perhaps seeking professional assistance to address psychiatric symptoms. However, there may be some difficulty establishing contributory negligence in the case of a student who had been cyberbullied inasmuch as children will normally have a reduced capacity to appreciate risk. Further, it may be important not to divorce the case from its context, which may include peer pressure and the belief that the bullying may intensify if there is complaint or may subside if nothing is done.[150] There may be a fear that parents or teachers might react by removing the target’s own access to the technology.
The law may be regarded as a ‘big stick’ sanction against perpetrators of cyberbullying. Whether it is always the appropriate sanction is another question. In practice, however, it would seem that only those cases with serious consequences for victims may attract legal sanctions.
In most cases falling within the scope of their responsibility, schools may be able to adequately deal with cyberbullying using disciplinary measures. However, if only punitive responses are applied it can shift the cyberbully’s focus away from the harm that their actions have caused to instead focus anger at the person or institution in authority. This may not positively influence their future bullying behaviour except to avoid detection. There is an additional need for reconciliation between the victim and the cyberbully if they are required to continue to co-exist together in the school. Many schools do this by using the principles of restorative justice after sanctions have been applied.
The law can be used as a deterrent for young people against engaging in cyberbullying. Many teenagers lack the maturity to appreciate the possible legal ramifications of their actions, especially when they think of their actions in terms of just having fun. Making young people aware of the possible legal consequences of cyberbullying may act as an effective deterrent against such behaviour.
Cyberbullies may feel emboldened because they believe they are anonymous or invisible when they cyberbully. This may mean that threats of punishment may have little impact on their behaviour. In addition to making them aware of the potential legal consequences of their acts, young people should be educated that technical means exist to trace the source of many types of cyberbullying, meaning that their identities can be traced.[151] The risk of exposure may serve as a further deterrent against engaging in the behaviour.
However, cyberbullying will continue unabated if incidents are not reported. Many victims will not report bullying to adults, with less than a quarter of bullied students ever telling a teacher.[152] In the National Children’s Home study[153] nearly 30% of cyberbullied students told no one. It is known that there are many reasons why young people do not tell adults.[154] They may feel too humiliated and embarrassed. In addition, many young people think that either their report will not be believed or that the incident will be trivialised by adults, or that they will be made feel that they are responsible for being bullied. They also may not have faith that adults are able to solve the problem and may fear that adults might make it worse.[155] In the case of cyberbullying, victims may fear that adults will take their technology away — in other words, that they themselves will not be allowed on the Internet.
To increase the likelihood of reporting there are many things that parents and schools can do. The first is to believe the reporter and not to trivialise any complaints but instead take them seriously. There should be as much confidentiality in the reporting process as possible and solving the problem should be a joint affair, involving adults who do not immediately take a punishing role. In the case of cyberbullying at school, the school’s policy should also set out the clear and transparent steps of what will happen after the reporting. Policies should be well operationalised and implemented. In the case of cyberbullying outside the scope of a school’s responsibility, steps such as reporting the bullying to the relevant Internet Service Provider should be pursued.
Some countermeasures, however, may be of limited effect. Technical solutions have been suggested to protect children from cyberbullying, such as blocking or filtering software which is used to limit cyberbullying, or intelligent content analysis which reports on all Internet traffic and looks at evidence that raises a reasonable suspicion. However, technological filters are incapable of detecting all harmful material that may be posted on a website. While basic advice to deter cyberbullying would include warning adolescents not to put personal information on their social networking site profiles or blogs, or to activate appropriate privacy settings, in practice such advice is unlikely to be heeded since the posting of personal information is usually the very purpose of such sites. Adolescents commonly use their real names rather than pseudonyms on social networking sites and blogs.[156]
Supervision is regarded as a practical precaution against bullying in the schoolyard. Similarly, when determining whether a school has met its duty of care a relevant consideration will be whether there was sufficient supervision of adolescents in the use of school technology. Likewise, monitoring computer use in the home, perhaps by locating the computer in family areas, may be a means of combating or detecting cyberbullying. However, it must be recognised that supervision will not always be an effective counter against cyberbullying. This will be particularly so where messages are communicated in code or by use of abbreviations, which may be impossible to understand by anyone not privy to the code. There are also forms of cyberbullying that may be difficult, if not impossible, to detect, such as the deliberate refusal to acknowledge or respond to an individual’s contributions to a social network or blog conversation, or chat room — the electronic equivalent of ‘being sent to Coventry’.
Cyberbullying, as all forms of bullying, is a complex social problem about relationships. It cannot be resolved or prevented entirely by either legal or technological solutions. It also cannot be diminished without the resolve of the whole community including parents, schools and the young people themselves. The key to reducing the incidence and impact of cyberbullying is education, not just about bullying but about all social relationships.
The whole community needs to first be aware of the problem and second consider it to be a problem. Parents always have an important role in decreasing bullying, but especially so in the case of cyberbullying since it often happens at home. Parents may be able to monitor to a certain extent but even more importantly are able to talk to young people about their online social life.
Schools are able to assist in this education both by embedding social relationship education in the curriculum and by providing peer helper programs. Bystanders, usually peers, play an important role in perpetuating the cycle of bullying. As bullying, by whatever means, is a social problem it needs to be solved in a social context. To do this the key is creating empathy in students, so that the bystanders speak out against bullies and do not silently condone the practice.[157] This would seem to be the same for cyberbullying. In Canada, thousands have logged onto a web site to make a promise to stick up for others who are being bullied.[158] Peer helper programs, buddy programs and transition programs all support the ethos of a school to teach students to help one another. Curriculum programs incorporating the direct teaching of values education, empathy training and the use of stories and drama embedded in the curriculum, as well as direct teaching of ‘netiquette’, could all help to reduce cyberbullying.
Education has a critical role to play in both preventing and regulating cyberbullying. Schools, parents and young people share a responsibility to stay engaged on this issue, to keep communication lines open, to amend bullying policies and acceptable online use policies, to configure profiles, software and web preferences and to agree on boundaries and appropriate manners and web-etiquette for the online environment to protect safety and privacy.
Much of what can and should be done by schools can be guided by legal considerations as to likely liability. However, guidance needs also to be provided to adolescents about what, if any, identifiable information and images should be posted in these spaces. Specifically, schools may see the value in reserving the right to themselves to discipline students for actions taken outside school hours if off-campus conduct is intended to have an effect on other students, adversely affect the safety and well being of students while at school, or otherwise impact on or disrupt the school learning environment.
[*] Professor, Faculty of Law, Queensland University of Technology.
[†] Associate Professor, Faculty of Education, Queensland University of Technology.
[**] Professor, Faculty of Law, Queensland University of Technology.
[1] Diana Oblinger and James Oblinger, ‘Is it age or IT: First steps towards understanding the Net Generation’ in Diane Oblinger and James Oblinger (eds), Educating the net generation (EDUCAUSE, 2005) Chapter 2.
[2] Australian Bureau of Statistics (ABS), 4901.0 - Children's Participation in Cultural and Leisure Activities, <http://www.abs.gov.au/ausstats/abs@.nsf/mf/4901.0> .
[3] Danah Boyd and Nicole Ellison, ‘Social networking sites: Definition, history and scholarship’ (2008) 13 Journal of Computer-Mediated Communication 210.
[4] Sandra Calvert and David Huffaker, ‘Gender identity and language use in teenage blogs’ (2005) 10(2) Journal of Computer Mediated Communication 1, <http://jcmc.indiana.edu/vol10/issue2/huffaker.html> .
[5] Owen Gibson, ‘Young blog their way to a publishing revolution’ The Guardian (United Kingdom) 7 October 2005.
[6] Ulla Foehr, Victoria Rideout and Donald Roberts, Generation M: Media in the lives of 8-18 Year-olds, Henry J Kaiser Family Foundation (2010) <http://www.kff.org/entmedia/entmedia030905pkg.cfm> .
[7] Calvert and Huffaker, above n 4.
[8] Ibid.
[9] Bill Belsey, Always on? Always aware! Cyber Bullying <www.cyberbullying.org>.
[10] Peter Smith et al, ‘Cyberbullying: Its nature and impact in secondary school pupils’ (2008) 49 Journal of Child Psychology and Psychiatry 376.
[11] For example, see: Anthea Lipsett, ‘Cyberbullying “affects 1 in 10 teachers”’, The Guardian, (online) 4 April 2009 <http://www.guardian.co.uk/education/2009/apr/04/cyber-bullying-schools-teachers-survey> Fiona Gray, ‘Cyber bullies prey on 15% of teachers’, Scotland on Sunday, (online) 22 February 2009 <http://scotlandonsunday.scotsman.com/education/Cyber-bullies-prey-on-1537.5004380.jp> .
[12] Donna Cross et al, Australian Covert Bullying Prevalence Study (ACBPS), Child Health Promotion Research Centre, Edith Cowan University (2009) <http://www.deewr.gov.au/Schooling/NationalSafeSchools/Pages/research.aspx> .
[13] Michael Snider and Kathryn Borel, ‘Stalked by a cyberbully’ (2004) 117(21/22) Maclean’s 76.
[14] Smith et al (2008), above n 10; Marilyn Campbell, ‘Cyber bullying: An old problem in a new guise?’ (2005) 15 Australian Journal of Guidance and Counselling 68; Justin W Patchin and Sameer Hinduja, ‘Bullies move beyond the schoolyard: A preliminary look at cyberbullying’ (2006) 4(2) Youth Violence and Juvenile Justice 148; Snider and Borel, ibid; Peter Smith, et al, An investigation into cyberbullying, its forms, awareness and impact, and the relationship between age and gender in cyberbullying, Research Brief No RBX03-06 (University of London, 2006).
[15] Qing Li, ‘Cyberbullying in schools: A research of gender differences’ (2006) 27(2) School Psychology International 157.
[16] Kimberly Mitchell and Michele Ybarra, ‘Youth engaging in online harrassment: Associations with caregiver-child relationships, Internet use, and personal characteristics’ (2004) 27 Journal of Adolescence 319.
[17] National Children’s Home, ‘1 in 4 children are the victims of “on-line bullying”’ (2002).
[18] Patchin and Hinduja, above n 14.
[19] Cross et al, above n 12.
[20] Ersilia Menesini and Annalaura Nocentini, ‘Cyberbullying definition and measurement: Some critical considerations’ (2009) 217 Journal of Psychology 230.
[21] Ibid.
[22] Cross et al, above n 12.
[23] Sara Bennett et al ‘Association between bullying and mental health status in New Zealand adolescents’ (2003) 5 International Journal of Mental Health Promotion 16.
[24] Barbara Coloroso, The Bully, the Bullied, and the Bystander: From Preschool to High School--How Parents and Teachers Can Help Break the Cycle of Violence (Collins Living, 2004); Kirsti Kumpulainen et al, ‘Bullying and psychiatric symptoms among elementary school children’ (1998) 22 Child Abuse and Neglect 705; Ken Rigby and Phillip Slee, ‘Suicidal ideation among adolescent school children, involvement in bully/victim problems and perceived low social support’ (1999) 29 Suicide and Life-threatening Behavior 119.
[25] Riittakerttu Kaltiala-Hein et al, ‘Bullying at school - An indicator of adolescents at risk for mental disorders’ (2000) 23 Journal of Adolescence 661; Kumpulainen et al, above n 24; Erling Roland, ‘Bullying, depressive symptoms and suicidal thoughts’ (2002) 44 Educational Research 55.
[26] Wendy Craig, ‘The relationship among bullying, victimisation, depression, anxiety, and aggression in elementary school children’ (1998) 24 Personality and Individual Differences 123; Roberto Forero et al, ‘Bullying behaviour and psychosocial health among school students in New South Wales, Australia’ (1999) 319 British Medical Journal 344.
[27] Ken Rigby, ‘What children tell us about bullying in schools’ (1997) 22(2) Children Australia 28; Sven Silburn et al, Western Australian child health survey: Education, health and competency catalogue (Australian Bureau of Statistics, 1997) 4305.5.
[28] Ernest Hodges and David Perry, ‘Personal and interpersonal antecedents and consequences of victimization by peers’ (1999) 76 Journal of Personality Social Psychology 677; Erling Roland, ‘Bullying, depressive symptoms and suicidal thoughts’ (2002) 44 Educational Research 55.
[29] Kaltiala-Hein et al, above n 25.
[30] Campbell, above n 14; Smith et al (2006), above n 14.
[31] Kathleen Conn, Bullying and harassment: A legal guide for educators (Association for Supervision and Curriculum Development, Virginia, United States of America, 2004).
[32] Jeremy Monsen, Philippa Reid and Ian Rivers, ‘Psychology's contribution to understanding and managing bullying within schools’ (2004) 20(3) Educational Psychology in Practice 241; Sheri Bauman and Adrienne Del Rio, ‘Preservice teachers’ responses to bully scenarios: Comparing physical, verbal, and relational bullying’ (2006) 98 Journal of Educational Psychology 219.
[33] Kathryn Sampilo Wilson, Teacher Perceptions of Classroom Management Practices in Public Elementary Schools (PhD thesis, University of Southern California, 2006) 23.
[34] Dieter Wolke and Sarah Woods, ‘Direct and relational bullying among primary school children and academic achievement’ (2004) 42(2) Journal of School Psychology 135, 151.
[35] A Bill was introduced into the House of Representatives on 24 June 2010 to amend the Sex Discrimination Act 1984 (Cth) to make cyberbullying in the form of sexual harassment (so-called ‘sexting’) illegal regardless of a student’s age: see Sex Discrimination Amendment Bill 2010. The fate of the Bill with the ensuing Federal election remains unclear as at the time of writing.
[36] For example, see Vickie Fix-Turkowski and Fred Hartmeister, ‘Getting Even with Schoolyard Bullies: Legislative Responses to Campus Provocateurs’ (2005) 195 Education Law Reporter 1, 5-6 discussing statutes from Arkansas (Ark Code Ann § 6–18 (2003); §§ 6-18-514 (2007)), California (Cal Educ Code §§ 32261, 32265, 32270, 32285, 32288, and 35294 (2004)), Colorado (Colo Rev Stat § 22–32–109.1 (2003)), Connecticut (Conn Gen Stat § 10–222d, 10–263e (2003)), Florida (Fla Stat Ann § 1006.147 (West 2009)), Georgia (Ga Code Ann §§ 20–2–145, 20–2–751 (2004)), Idaho (Idaho Code Ann § 18-917A (2009)), Illinois (105 Ill Comp STAT. 5/10–20.14(d) (2001)), Iowa (Iowa CODE § 280.28 (2007)), Kansas (KAN. Stat Ann § 72-8256 (West 2008)), Louisiana (La Rev Stat Ann § 17:416.17 (2002)), Maryland (Md Code Ann, Educ § 7-424 (West 2009)), Nebraska (Neb Rev Stat Ann § 79-2, 137), New Hampshire (NH Rev Stat Ann § 193 (2004)), New Jersey (NJ Stat Ann § 18A (2004)), New York (NY Educ Law § 2801–a (2004)), North Carolina (NC Gen Stat §§ 14-458.1 and 14-453), Minnesota (Minn Stat Ann § 121A.0695 (West 2009)), Oklahoma (Okla Stat tit 70, § 24–100 (2004); Okla Stat Ann tit 70, § 24-100.3 (West 2009)), Oregon (OR Rev Stat § 339 (2001); OR Admin R 137–085–0010 (2004); OR Rev Stat Ann § 339.356 (West 2009)), Pennsylvania (PA Cons Stat Ann § 13-1303.1-A (West 2008)), Rhode Island (RI Gen Laws §§ 16–21–24 and 16–21–26 (2003)),South Carolina (SC Code Ann § 59-63-120 (2006)), Vermont (VT Stat Ann tit 16 §§ 11, 140a, 165, 565 and 1161 (2004)),Washington (Wash Rev Code § 28A.300.285 (2009)), and West Virginia (W VA Code §§ 18–2C–1 to 18–2C–6 (2003)). More recently see: Colleen Barnett, ‘Cyberbullying: A New Frontier and a New Standard: A Survey of and Proposed Changes to State Cyberbullying Statutes’ (2009) 27 Quinnipiac Law Review 579; Michael R Gordon, ‘The Best Intentions: A Constitutional Analysis of North Carolina’s New Anti-Cyberbullying Statute’ (2009) 11 North Carolina Journal of Law & Technology, Online Edition, 48.
[37] Bob Meadows et al, ‘The Web: The Bully's New Playground’ (2005) 63(10) People 152.
[38] See, ‘Justine's troll escapes jail time’, Sunshine Coast Daily (online), 19 September 2010, <http://www.sunshinecoastdaily.com.au/story/2010/08/02/justines-troll-escapes-jail-time/> Rachel Carbonell, ‘Australia's first trolling case hits court’, ABC Radio AM, 5 June 2010, <http://www.abc.net.au/am/content/2010/s2919105.htm> .
[39] Crimes Act 1900 (ACT); Criminal Code Act 1995 (Cth); Crimes Act 1900 (NSW); Criminal Code 1983 (NT); Criminal Code 1899 (Qld); Criminal Law Consolidation Act 1935 (SA); Criminal Code Act 1924 (Tas); Crimes Act 1958 (Vic) and Criminal Code 1913 (WA).
[40] C v DPP [1995] UKHL 15; [1996] 1 AC 1 and see Criminal Code Act 2002 (ACT) ss 25, 26; Crimes Act 1914 (Cth) ss 4M-N; Criminal Code Act 1995 (Cth) ss 7(1)-(2); Children (Criminal Proceedings) Act 1987 (NSW) s 5; Criminal Code 1983 (NT) ss 38(1)-(2); Criminal Code 1899 (Qld) ss 29(1)-(2); Criminal Code Act 1924 (Tas) ss 18(1)-(2); Children and Young Persons Act 1989 (Vic) s 127; Criminal Code 1913 (WA) s 29.
[41] Calvert and Huffaker, above n 4.
[42] Defined by reference to ‘carriage services’ in s 7 of the Telecommunications Act 1997 (Cth) as meaning ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’.
[43] Criminal Code Act 1995 (Cth) s 474.15.
[44] Criminal Code Act 1995 (Cth) s 474.15(3).
[45] Helen Carter, ‘Teenage girl is first to be jailed for bullying on Facebook’, The Guardian (online), 21 August 2009 <http://www.guardian.co.uk/uk/2009/aug/21/facebook-bullying-sentence-teenage-girl> .
[46] Bridie Smith, ‘Schools ban YouTube sites in cyber-bully fight’, The Age (online), 2 March 2007 <http://www.theage.com.au/news/national/schools-ban-youtube-sites-in-cyberbully-fight/2007/03/01/1172338796092.html> .
[47] Ibid.
[48] Colleen Barry, ‘Google privacy violation conviction: three executives found guilty in Italy’ 24 February 2010 <http://www.huffingtonpost.com/2010/02/24/google-privacy-violation_n_474418.html>
[49] Anna Patty, ‘Schools advised to target blogging bullies’, Sydney Morning Herald (online), 2 October 2006 <http://www.smh.com.au/news/national/schools-advised-to-target-blogging-bullies/2006/10/01/1159641213175.html> .
[50] Ibid.
[51] Celia Wells, ‘Stalking: The Criminal Law Response’ (1997) Criminal Law Review 463.
[52] Sally Kift, ‘Stalking in Queensland: From the Nineties to Y2K’ [1999] BondLawRw 8; (1999) 11(1) Bond Law Review 144.
[53] R v Clarke (Unreported, Queensland District Court, Ipswich, Robertson DCJ, 27 February 1995).
[54] See Crimes Act 1900 (ACT) s 35; Crimes Act 1900 (NSW) s 545B; Criminal Code 1983 (NT) s 189; Criminal Code 1899 (Qld) s 359A; Criminal Law Consolidation Act 1935 (SA) s 19AA; Criminal Code Act 1924 (Tas) ss 192, 192A; Crimes Act 1958 (Vic) s 21A and Criminal Code 1913 (WA) ss 338D, 338E; Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 8, 13.
[55] For detailed recent discussions of the several Australian offences see, Heather Douglas, Personal Protection and the Law: Stalking, Domestic Violence and Good Behaviour (Paper presented at Association of Law Reform Agencies of Eastern and Southern Africa Conference, South Africa, 8 January 2006) <http://www.qlrc.qld.gov.au/events/personalProtection.pdf> Gregor Urbas, ‘Look who’s stalking: cyberstalking, online vilification and child grooming offences in Australian legislation (2007) 10(6) Internet Law Bulletin 62.
[56] New South Wales Law Reform Commission, Apprehended violence orders, Report No 103 (2003) 12.9.
[57] See, for example, the detailed provisions in the Criminal Law Consolidation Act 1935 (SA) ss 19AA(1)(iva)-(ivb) and in the Crimes Act 1958 (Vic) s 21A(2)(ba)-(bc).
[58] Such as the Criminal Code Act 1924 (Tas) s 192A and Crimes Act 1958 (Vic) s 21A(7) which was amended following DPP v Sutcliffe [2001] VSC 43.
[59] Selma Milovanovic, ‘Man avoids jail in first cyber bullying case’, The Age (online), 9 April 2010 <http://www.theage.com.au/victoria/man-avoids-jail-in-first-cyber-bullying-case-20100408-rv3v.html> . In the US, see also ‘Girl who killed herself experienced ‘unrelenting' bullying’, The Age (online), 30 March 2010 <http://www.theage.com.au/world/girl-who-killed-herself-experienced-unrelenting-bullying-20100330-r8z4.html> .
[60] See, for example, King v R (1876) 2 VLR 17, 20 and note the penalty provided in Crimes Act 1958 (Vic) s 320.
[61] See Criminal Code Act 2002 (ACT) s 439; Crimes Act 1900 (NSW) s 529; Criminal Code 1983 (NT) s 204; Criminal Code 1899 (Qld) s 365; Criminal Law Consolidation Act 1935 (SA) s 257; Criminal Code Act 1924 (Tas) s 196; Wrongs Act 1958 (Vic) s 10; Criminal Code 1913 (WA) s 345.
[62] See Criminal Code Act 2002 (ACT) s 439(8); Crimes Act 1900 (NSW) s 529(11); Criminal Code 1983 (NT) s 203; Criminal Code 1899 (Qld) s 365(8); Criminal Code Act 1924 (Tas) s 196(7); Criminal Code 1913 (WA) s 345(7).
[63] See Criminal Code Act 2002 (ACT) ss 26, 26A; Crimes Act 1900 (NSW) s 61; Criminal Code 1983 (NT) ss 187(b), 188; Criminal Code 1899 (Qld) ss 245, 335; Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Code Act 1924 (Tas) ss 182(1), 184; Crimes Act 1958 (Vic) s 31; Criminal Code 1913 (WA) ss 222, 313.
[64] The latter usually determined from the subjective perspective of the target: R v McNamara [1953] VicLawRp 88; [1954] VLR 137; Brady v Schatzel [1911] QSR 206.
[65] Criminal Code 1899 (Qld) s 245.
[66] Criminal Code 1913 (WA) s 222.
[67] Criminal Law Consolidation Act 1935 (SA) s 20(1)(c).
[68] Criminal Code 1983 (NT) s 187(b).
[69] See R v Ireland, R v Burstow [1997] UKHL 34; [1998] AC 147 where it was held that a series of silent telephone calls could amount to common law assault; see also Barton v Armstrong [1969] 2 NSWLR 451; Marchioro v Miller [1962] SASR 233.
[70] Criminal Code 1899 (Qld) ss 328, 339, definition in s 1; Criminal Code 1913 (WA) ss 304, 317, definition in s 1.
[71] Criminal Code Act 2002 (ACT) ss 23, 24; Crimes Act 1900 (NSW) s 59.
[72] Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Code 1983 (NT) ss 174E, 181 and 186, definitions of ‘serious harm’ and ‘harm’ in s 1 and s 1A respectively.
[73] Crimes Act 1958 (Vic) s 18.
[74] R v Ireland, R v Burstow [1997] UKHL 34; [1998] AC 147, 159; see also R v Chan-Fook [1993] EWCA Crim 1; [1994] 2 All ER 552, 559.
[75] See 4.2.2 below.
[76] R v Ireland, R v Burstow [1997] UKHL 34; [1998] AC 147, 159 (Lord Steyn).
[77] Commenced in February 2003.
[78] As defined in s 60D(2).
[79] Criminal Code 1899 (Qld) s 308; Criminal Code Act 1924 (Tas) s 163.
[80] See Crimes Act 1900 (ACT) s 30; Criminal Code 1983 (NT) s 166; Criminal Law Consolidation Act (SA) ss 19(1)-(3); Crimes Act 1958 (Vic) s 20; Criminal Code 1913 (WA) ss 338A-B.
[81] Where it is sufficient that the offender knew of the contents of the threat.
[82] See Crimes Act 1900 (ACT) s 30; Criminal Law Consolidation Act (SA) ss 19(1)-(2); Crimes Act 1958 (Vic) s 20.
[83] Crimes Act 1900 (NSW) s 31.
[84] Crimes Act 1900 (ACT) s 31.
[85] Crimes Act 1900 (NSW) s 199; Criminal Code 1913 (WA) ss 338(b), 338B.
[86] Criminal Code 1983 (NT) s 200; Criminal Code 1899 (Qld) s 359.
[87] Criminal Code 1913 (WA) ss 338(d), 338B.
[88] Crimes Act 1958 (Vic) s 21.
[89] Criminal Law Consolidation Act (SA) s 19(2).
[90] Criminal Code 1913 (WA) ss 338(a), 338B.
[93] Section 32OA and see also Crimes Act 1900 (ACT) s 36.
[94] Section 545B.
[95] See, for example, Criminal Code 1899 (Qld) ss 227A, 227B respectively; Summary Offences Act 1988 (NSW) ss 21G, 21H; Criminal Code (Canada) s 162; Sexual Offences Act 2003 (UK) s 67.
[96] Glenn Johnson, ‘Boy, 12, and girl, 13, face felony charges for ‘sexting’ nude pictures’, The Vancouver Sun (online), 30 January 2010 <http://www.vancouversun.com/technology/girl+face+felony+charges+sexting+nude+pictures/2502056/story.html> Maryclaire Dale, ‘US court on 'sexting': Child porn or child's play?’, Washington Examiner (online), 15 January 2010 <http://www.washingtonexaminer.com/nation/81707527.html> .
[97] Chloe Lake, ‘Lori Drew acquitted of cyberbullying on MySpace due to hacker law’, The Herald Sun (online), 2 September 2009 <http://www.heraldsun.com.au/news/lori-drew-acquitted-of-cyberbullying-on-myspace-due-to-hacker-law/story-e6frf7jo-1225768847349> .
[98] (1964) 111 CLR 364, [5].
[99] Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256.
[100] Civil Laws (Wrongs) Act 2002 (ACT), Chapter 9; Defamation Act 2005 (NSW); Defamation Act (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).
[101] Donoghue v Hayes (1831) Exch 265, 266.
[102] Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664, 667; Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reps 80-002, 67,476.
[103] Stephens v Myers (1830) 4 C&P 349, 349-50 (Tindal CJ).
[104] Barton v Armstrong [1969] 2 NSWR 451; Zanker v Vartzokas (1988) 34 A Crim R 314, 318.
[105] [1897] 2 QB 57.
[107] Restatement (Second) of Torts § 46 (1977); Rugg v McCarty, 476 P 2d 753 (Colo 1970); Miller v Willbanks 8 SW 3d 607 (Tenn 1999).
[108] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
[109] [2003] QDC 151 (16 June 2003).
[110] At [444].
[111] Des Butler, ‘A tort of invasion of privacy in Australia?’ (2005) 29 University of Melbourne Law Review 339.
[112] See, for example, Chapman v Conservation Council of South Australia [2002] SASC 4; (2002) 82 SASR 449, [154]; cf Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721.
[113] Campbell v MGN [2004] UKHL 22; (2004) 62 IPR 231; Douglas v Hello! [2000] EWCA Civ 353; [2000] All ER (D) 2435.
[114] Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [117]. This was therefore akin to the formulation of the tort in the Second Restatement.
[116] [2008] VSCA 236; (2008) 40 Fam LR 378.
[117] (2001) 208 CLR 199 [36] – [43].
[118] The Australian Law Reform Commission has now recommended a statutory cause of action for breach of privacy be enacted: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) [74.112]-[74.198]. To date the Federal Government has only delivered the first stage of its formal response, which only considered 197 of the Commission’s 295 recommendations. It is yet to respond to the remaining 98 recommendations, which include the recommended statutory tort. See also the discussion in New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007) Chapter 7.
[119] New South Wales v Lepore [2002] HCA 35; (2002) 211 CLR 317.
[120] Byrne v Deane [1937] 1 KB 818; see also Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reps 81-127.
[121] Stratton Oakmont Inc v Prodigy Services Inc 1995 NY Misc LEXIS 229; Godfrey v Demon Internet Limited [1999] EWHC QB 244; [1999] 4 All ER 342.
[122] 776 F Supp 135 (SDNY) (1991).
[123] [1997] USCA4 999; 129 F 3d 327 (4th Cir 1997).
[125] Cf the Facebook social networking site has an editorial policy which prohibits users from: (a) posting content which is hateful, threatening or pornographic; or (b) using Facebook to do anything unlawful, misleading, malicious or discriminatory. However, the policy states that ‘we do our best to keep Facebook safe, but we cannot guarantee it’: Facebook, Statement of Rights and Responsibilities (23 August 2010), 3(6) and 3(10) <http://www.facebook.com/terms.php?ref=pf> .
[126] Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, 264, 269.
[127] See also Ramsay v Larsen [1964] HCA 40; (1964) 111 CLR 16, 28.
[128] See McHugh J in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, 565.
[129] See Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258.
[130] Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, 94 (Stephen J).
[131] [1977] HCA 64; (1977) 138 CLR 91.
[132] Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399.
[133] See ibid, 63,597 (Shellar JA).
[134] Chadwick v British Railways Board [1967] 1 WLR 912, 922.
[135] [2002] HCA 35; (2002) 211 CLR 317.
[136] [2000] NSWCA 121; (2000) 49 NSWLR 21, 42.
[137] [1942] UKHL 5; [1943] AC 92, 110 and 117 respectively.
[138] Justice Ipp, Second Report on the Law of Negligence (Australian Government, 2002).
[139] See Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S.
[140] Justice Ipp, above n 138, 163.
[141] Des Butler, ‘Gifford v Strang and the new landscape for liability for psychiatric injury in Australia’ (2004) 12 Torts Law Journal 108, 122.
[142] Cf Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, 359 where McHugh J stated that normal fortitude was ‘not a matter for expert evidence.’ See also Page v Smith [1994] 4 All ER 522, 549-50 (Hoffman LJ).
[143] Williams v Eady (1893) 10 TLR 41, 42.
[144] Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, 102 (Murphy and Aickin JJ).
[145] See Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43; Civil Liability Act 2002 (NSW), s 5B; Civil Liability Act 2003 (Qld), s 9; Civil Liability Act 1936 (SA), ss 31, 32; Civil Liability Act 2002 (Tas), s 11; Wrongs Act 1958 (Vic), s 48; Civil Liability Act 2002 (WA), s 5B. The Northern Territory still applies the common law which, whilst following a similar two-tier approach, defines ‘reasonable foreseeable’ in terms of not far-fetched or fanciful.
[146] Civil Liability Act 2002 (NSW), s 5O; Civil Liability Act 2003 (Qld), s 22; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (Tas), s 22; Wrongs Act 1958 (Vic), s 59. Cf. Civil Liability Act 2002 (WA), s 5PB which only applies to medical professionals.
[147] Civil Law (Wrongs) Act 2002 (ACT), s 45; Civil Liability Act 2002 (NSW), s 5D; Civil Liability Act 2003 (Qld), s 11; Civil Liability Act 1936 (SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s 51; Civil Liability Act 2002 (WA), s 5C.
[148] See also Bradford-Smart v West Sussex County Council [2002] ELR 139, [37] (CA).
[149] Civil Liability Act 2002 (NSW), s 5R; Civil Liability Act 2003 (Qld), s 23; Civil Liability Act 1936 (SA), s 44; Civil Liability Act 2002 (Tas), s 23; Wrongs Act 1958 (Vic), s 62; Civil Liability Act 2002 (WA), s 5K.
[150] Cf New South Wales v Griffin [2004] NSWCA 17.
[151] See, eg, Richard Harold Smith v ACTEW Retail Ltd (unreported, NSWSC, No 15029/06) where the plaintiff obtained a court order compelling an ISP to provide the name and address of a user who posted defamatory comments on a website forum under a pseudonym. See also Keith-Smith v Williams [2006] EWHC 860 (unreported, QB, 21 March 2006) (damages awarded for defamatory comments posted anonymously on a computer bulletin board).
[152] Ken Rigby, ‘What children tell us about bullying in schools’ (1997) 22(2) Children Australia 28.
[153] National Children’s Home (now Action for Children), above n 17.
[154] Lindy Petersen and Ken Rigby, ‘Countering bullying at an Australian secondary school’ (1999) 22(4) Journal of Adolescence 481.
[155] Ibid.
[156] Calvert and Huffaker, above n 4.
[157] Toni Noble, ‘Nobody left to hate’ (2003) 4 EQ Australia 8.
[158] Linda Tracey, ‘Sticks and stones: Getting tough against bullying in Toronto schools’ (2004) 21(1) Today’s Parent 1.
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