More women and girls are being stalked, abused online and being coerced to send sexual content due to cyberstalking which has increased during COVID-19 lockdowns.
A survey of front-line support workers conducted by Monash University has reported that the perpetrators are mostly men aged up to 34, using technology as a means to stalk and intimidate current and former partners.
Image-Based abuse was identified as a primary problem, with many victims being coerced or blackmailed into sending explicit images.
During the Covid-19 lockdown and with the associated restrictions on movement, many perpetrators resorted to digital technology and social media in order to stalk and harass their victims.
Various support services reported that there were significant obstacles in assisting victims of online abuse, the most prominent being a lack of response from both technology providers and the police not taking complaints seriously enough.
What is cyberstalking?
Cyberstalking is a form of online abuse.
It includes an array of behaviours which occur via the use of one or more platforms in the online environment.
Behaviours include :
- false accusations
- abusive comments
- attempts to smear someone's reputation
- threats of physical or sexual violence
- repeated unwanted sexual requests.
- monitoring
- identity theft
- gathering information that may be used to threaten, embarrass or Harass.
- leaving messages on social media sites.
Cyberstalking is often accompanied by offline stalking.
Does the law prohibit cyberstalking?
In New South Wales, it is illegal to stalk another person, even if that stalking is over the internet, or online.
In NSW, the offence of staking or intimidation is contained within section 13 of the Crimes (Domestic and Personal Violence) Act 2007, which prescribes a maximum penalty of five years in prison.
Stalking or intimidation includes conduct such as:
- following a person;
- approaching, watching or frequenting the vicinity of a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
- conduct (including cyberbullying) amounting to harassment or molestation;
- approaching a person any means (including by telephone, telephone text messaging, emailing and other technologically assisted means) that causes the person to fear for their safety;
- conduct that causes a reasonable person to apprehend injury to them or another person with whom they have a domestic relationship;
- conduct that causes a reasonable person to apprehend violence or damage to any person or property,
- contacting or otherwise approaching a person using the internet or any other technologically assisted means.
Commonwealth offence
Cyberstalking also comes within the ambit of federal Commonwealth offences.
Under section 474.17(1) of the Criminal Code 1995 (Cth) ("the Code"), a person commits an offence if they use a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
The legislation stipulates that a person is guilty of an offence if:
- the person uses a carriage service; and
- the person does 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.
- actions that could constitute using a carriage service to menace, harass or cause offence:
- calling random phone numbers and yelling insults of threats at the person who picks up;
- posting a Facebook status calling someone names;
- sending dozens of text messages each day to a someone who refuses to see you or speak to you;
"Harrass" typically means to trouble or annoy by a repeated course of conduct.
However, a single telephone call may constitute harassment depending on the contents of the words uttered, or the time and circumstances in which the call was made.
"Menace" means to cause a normally courageous person to feel apprehensive for their safety because of the call or calls.
It is not necessary for a call to threaten actual harm for it to be menacing. Nor is it necessary for the communication to be made directly to the person menaced. As long as the caller intends the communication to be communicated to the ultimate recipient, it is sufficient.
The prosecution must prove beyond a reasonable doubt:
- that the person used a carriage service;
- that the content of the communications was menacing, harassing or offensive, and
- that a reasonable person would consider what they did to be menacing, harassing or offensive
A person charged for the offence can be convicted of a maximum penalty of 3 years imprisonment or 5 years for the aggravated offence.
What is the rationale of criminalisation ?
Laws in Australia that prohibit the offence of stalking have arisen primarily due to domestic violence in married, de-facto and romantic relationships.
Being cyberstalked can be traumatic and extremely stressful.
It is normal to experience one or more of these reactions:
- feeling confused, anxious and powerless
- feeling angry, depressed and distrustful
- feeling isolated from family and friends
- feeling that you need to watch your back all the time and are unable to have any peace
- finding it harder to remember things or get organised
- becoming super-focused and noticing and remembering everything
- being unable to 'switch off'
- struggling to manage caring responsibilities, such as looking after children
Due to an increasingly digitalised world, where most people have multiple social media affiliations and much of their personal information is accessible, perpetrators are able to use social media to stalk another person.
Earlier this year an Online Safety Bill was passed by the federal parliament. This provides the Australian eSafety commissioner with powers to order websites to remove abusive content.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
