The Senate Legal and Constitutional Affairs References Committee (the Committee) is holding a public inquiry into the effectiveness of existing cyber bullying laws. The Committee is currently accepting submissions from the public on its terms of reference until 13 October 2017 and will report its findings by 29 November 2017.

Why is there an inquiry?

The Committee will investigate the adequacy and sufficiency of the cyber bullying laws following the tragic death of an Adelaide schoolgirl Libby Bell, who took her own life. Her family alleges that her death was due to her being a victim of cyber bullying over Facebook, Instagram and Snapchat from her school peers.  The Advertiser states that her family has issued a public warning about the dangers of bullying that can start from “pointless teasing and ridicule” before escalating.

In response to Libby Bell’s death the South Australian Police Commissioner, Grant Stevens, said last month that the South Australian Government should consider strengthening legislation to make it easier to prosecute bullies.

Legislation targeting bullying already exists in other jurisdictions. In 2011, Victoria introduced Brodie's Law to implement anti-bullying laws to protect against and to make serious instances of bullying a crime punishable by up to 10 years imprisonment. Brodie's Law was created after Brodie Panlock, a 19-year-old Melbourne waitress, ended her life due to relentless bullying by her co-workers. Since the inception of Brodie's Law, nearly 60 people have been charged with over 140 bullying offences.

As part of the inquiry, the Committee will consider existing penalties and explore if minors can be prosecuted or charged with cyber bullying offences.  The Committee says that it will make sure the laws keep pace with technological advancements and social change.

Social media sites, Facebook, Instagram, Snapchat and YouTube have been invited to make submissions and have their representatives appear before the Committee.

The Committee’s terms of reference

The Committee is tasked with investigating the adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyber bullying, including:

• the broadcasting of assaults and other crimes via social media platforms
• the application of section 474.17 of the Commonwealth Criminal Code Act 1995 (Cth) (Criminal Code) ‘using a carriage service to menace, harass or cause offence’, and the adequacy of the penalty, particularly where the victim of cyber bullying has self-harmed or taken their own life
• the adequacy of the policies, procedures and practices of social media platforms in preventing and addressing cyber bullying
• other measures used to combat cyber bullying predominantly between school children and young people
• any other related matter.

What is section 474.17 of the Criminal Code?

Under section 474.17 of the Criminal Code, it is a criminal offence to use a carriage service (such as the internet or other telecommunication service) to menace, harass or cause offence.  A person commits an offence if:

• they use a carriage service; and
• they do so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Committing this offence carries a maximum penalty of three years imprisonment. The Committe is tasked with assessing whether this current offence is an appropriate legal solution to trying to prevent cyber bullying, especially amongst minors.

E-Safety Commissioner: making a complaint

The Office of the e-Safety Commissioner (Commissioner) was established to help educate the community on how to prevent cyber bullying and to provide a formal avenue for complaining about offensive or illegal content appearing online. If a child is a victim of cyber bullying, a complaint can be made online to the Commissioner.  However if the bullying is occurring on social media, the victim is first encouraged to contact the social media site to report the inappropriate activity.  The website administrators may then take action. Overall, a successful result would be the perpetrator of the bullying removing the offensive content from the social media sites.

While the Commissioner's services provide a valuable avenue for making a complaint, many young people may not be aware of this option or they may not wish to report the activity to a social media website. In theory, parents are the ideal people to assist their children to make a complaint by going through these processes - but this only works if the parents know that their child is a victim.  It may be less useful when a child does not confide in their parents or guardians or feels so helpless that they don't feel capable of taking these steps to make a report online.

Having a clear criminal offence for cyber bullying, and educating children on its existence, may encourage victims to take action where they would otherwise not do so. It may provide a more effective deterrent to bullies who, if they have already been asked to take inappropriate content down, may do it again.

The challenge will be to determine an adequate penalty if minors are involved.

Lessons for schools

Until the Committee hands down its decision in late November, we will not know what its recommendations will be.  In the meantime, schools should recognise their duty to students to provide a safe and positive learning environment which includes the responsible use of information and technologies.

Schools should, as a preventative measure, educate students and train staff about the effects and possible consequences of cyber bullying. There are programs available to educate students and staff on how to detect, protect against and deal with cyber bullying.  Each state and territory’s regulator provide a list of material on cyber bullying and may also provide assistance as to what cyber bullying programs can be used to educate students and staff.  The Office of the eSafety Commissioner and Bullying No Way provides some useful tools and resources for schools to use to educate students on cyber bullying.

On 1-3 November in Sydney a conference is being held by Commissioner and NetSafe NZ to explore the latest experiences, research and global perspectives in online harm and resilience.  See this website for more information.

If you or someone you know needs support or someone to talk to, contact the Lifeline Australia hotline at 13 11 14, the Kids Helpline (for ages 5-25) at 1800 55 1800 or the Suicide Call Back Service at 1300 65 94 67.