Cyber-bullying – Introduction of New Legislative Amendments

July 1, 2010

By Katy Barnett

In a follow-up to my post on cyber-bullying, the Australian government are intending to amend the Sex Discrimination Act 1984 (Cth) in an attempt to deal with the phenomena of cyber-bullying and “sexting”.

1. Current provisions of the Sex Discrimination Act

Presently, s 28F of the Sex Discrimination Act prohibits “sexual harassment” in educational institutions in the following terms:

(1)  It is unlawful for a member of the staff of an educational institution to sexually harass:

(a)  a person who is a student at the institution; or

(b)  a person who is seeking to become a student at the institution.

(2)  It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a)  a person who is an adult student at the institution; or

(b)  a member of the staff of the institution.

(3)  In this section:

“adult student” means a student who has attained the age of 16 years.

“Sexual harassment” is defined by s 28A of the Sex Discrimination Act as follows:

(1)  For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 28F applies only to harassment by persons within the same educational institution as the complainant, and also requires the complainant to be over 16 years of age.

2. Proposed amendments to the Sex Discrimination Act

The Age reports that a variety of amendments are proposed, including a change to the age of persons who can sue for sexual harassment, and an extension of the organisations in which sexual harassment may take place:

The changes…will mean that for the first time students under the age of 16 will be able to resort to the Sex Discrimination Act, provided perpetrators are over the age of 16.

The overhaul will also mean that sexual harassment laws will no longer be limited to staff and students within the same schools but are extended to cover peers or teachers from other institutions who might mingle at combined events such as sporting carnivals and theatrical productions.

I wonder if the amendments will include reference to modern technology for the avoidance of doubt on the matter?

3. Students harassing staff?

The present Act and the proposed amendments do not seem to cover the possibility of students sexually harassing staff.

There has been a recent case in South Africa on this point (hat tip: Obligations Discussion Group): Le Roux & Ors v Dey [2010] ZASCA 41.  The case arose when a 15-year-old student (the first defendant) found a picture of two gay bodybuilders in a compromising position when searching the internet.  He replaced the heads of the bodybuilders with photos of the principal and the vice-principal of his school, and obscured the genitals of the men with a school badge.  The first defendant sent the photo to a friend, who then texted it to various other students, including the second defendant, a 17-year-old student at the school.  The photo was quickly disseminated through the student body.  The second defendant printed out the photo and displayed it to a teacher and other students.  Then the second defendant persuaded the third defendant, another 17-year-old student, to place the photograph on the school notice board.  The photograph was soon discovered by another teacher and removed.

The plaintiff, the vice-principal whose head had been featured in the manipulated picture, brought a claim for sentimental damages for two delicts (or wrongs): the infringement of his dignity (dignitas) and reputation (fama).  The plaintiff appears to have been a devout Christian who suffered acute embarrassment and humiliation as a result of the publication of the doctored photograph.  The North Gauteng High Court held that the defendants were liable for infringement of dignity and reputation, and awarded R45,000 against the defendants.  The defendants appealed.  

On appeal, a majority of the South African Supreme Court of Appeal upheld the claim in respect of the injury to reputation, and upheld the quantum of damages.  The majority found that there was only one relevant cause of action, and the action for injury to reputation encompassed infringement of dignity.  By contrast, in the minority, Griesel AJA found that the conduct amounted to an infringement of the plaintiff’s dignity, not his reputation, but still upheld the amount of the award.

What would occur if something like this happened in an Australian school?  Let us presume that a 17 year old student disseminated sexually explicit photos which were manipulated to depict a teacher in a compromising position.  The provisions of the Sex Discrimination Act as they presently stand would not cover this conduct (which seem only to contemplate harassment by teacher to student), and it does not seem that the amendments will change this. I suspect the teacher would have to rely on defamation. We do not have a tort of injury to dignity, although as discussed in my previous post, there have been obiter suggestions by Maxwell P in Giller v Procopets that Australian law might adopt a tort of intentional infliction of mental suffering, similar to that which exists in the United States.

4. Protection from Harassment Act 1997 (UK)

There has been discussion among the Obligation Discussion Group (Melbourne Law School) as to whether the Protection from Harassment Act 1997 (UK) would cover instances of cyberbullying between students. We do not have an equivalent Act in Australia.  Section 1 of the Act prohibits “harassment”, and s 2 confirms that a breach of s 1 is an offence.  Section 3 gives the person who is the victim of the harassment a civil remedy against the perpetrator.  Section 4 provides that putting people in fear of violence is an offence.

The general consensus seems to be that the Protection from Harassment Act would potentially apply to a case of cyberbullying between students.  “Harassment” is not actually defined in the Act, although s 1(2) specifies, “the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”  Section 7(2) also provides that harassment includes “alarming the person or causing the person distress.”

In Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 , Lord Nicholls said at [30]:

Where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. (emphasis added)

Baroness Hale noted at [66] in the same case:

A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

Lord Nicholls “oppressive and unacceptable” test was applied and elucidated last year in two cases of the English Court of Appeal.  In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 the Court of Appeal confirmed that the test was whether the conduct was “oppressive and unacceptable”, and thus worthy of criminal sanction.  It was emphasised that the course of conduct must be grave.  In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288, a case involving workplace bullying, the Court of Appeal again applied the “oppressive and unacceptable” test.  The Court ultimately found that, although harassment would not usually be present in a workplace context, in this case it was present on the facts because of the extraordinary severity of the conduct. Malice was not required to establish harassment, but establishing malice made it easier to establish that the conduct was “oppressive and unacceptable”.

Thus, depending on the nature and severity of the cyberbullying, if conduct was grave, oppressive and unacceptable it may fall under the Act.  It was also noted in the ODG that defamation would be another cause of action available to a UK victim of cyberbullying.  And, as I have noted in my earlier post, a defendant was charged with making threats to kill over Facebook in a schoolyard bullying context.

5. Conclusion — other questions for organisations to consider

When I was in the final years of primary school, there was a student who had been held back because of learning difficulties.  He was somewhat older than his classmates, and had come from a different school.  He used to behave in an inappropriately sexual fashion in class, and sexually harass female students repeatedly.  I’m not sure if the teachers were aware of the extent of the problem, and if they were, I suspect that they didn’t know what to do.  This kid once held me up against the lockers and thrust himself against me, which was pretty scary. After I attempted to kick him and said I’d scream, he left me alone.  The interesting thing was that, in the absence of any appropriate response from the teachers at the school, the other boys policed this kid and used to beat him up for inappropriate behaviour towards girls.  Of course, the boys who beat up the kid used to get in trouble.  I wish I’d been articulate enough at that age to explain to the school administration why they’d done it.

I was also thinking of a school teacher friend of mine who recently started teaching at a new school and found that a large proportion of the male students had a habit of publicly, erm,  “adjusting” or “fiddling” with themselves in class or when in conversation with the teacher.  My friend was taken aback by this behaviour, and went to talk to the school administration after a younger female colleague confessed she felt very uncomfortable around the male students, but he was told that any problems were his, not the students’.

Schools and other organisations (orchestras, sports teams & etc) will have to be careful to police this kind of behaviour.  Obviously the example of the highly sexual primary school student wouldn’t be covered by the amended or present Sex Discrimination Act because the kid was too young, but the second scenario might be caught by the Act if some female students complained about the conduct of a male student and were offended by it.

I guess the question remains as to always question how appropriate it is to police this kind of behaviour with laws.  I’m not a libertarian.  I think it’s appropriate to have some kind of regulation to prevent discrimination and sexual harassment.  Nonetheless, a close inspection of the Sex Discrimination Act worried me. The conduct described in s 28A includes conduct of a sexual nature which offends, humiliates or intimidates. (Cue song: Which one of these things is not like the other things?)

To my mind, offence is very different to humiliation and intimidation.  Humiliation and intimidation seek to belittle the person’s standing as an equal human being in the eyes of the community.  In a Kantian sense, the perpetrator inflicts a moral injury by trying to belittle the other.  By contrast, offense is a very subjective concept.  Some girls may be offended by seeing that a boy had a picture in his locker of a voluptuous semi-naked babe, but the boy never intended to create offence in others, and merely kept the picture in his locker for his own daydreams.  If I were seeking to extend the provisions of the Sex Discrimination Act to cyberbullying and “sexting”, I’d cut the “offence” part, but leave the humiliation and intimidation, because that is the kind of conduct we really want to prevent.

Katy Barnett is a PhD candidate at the Melbourne Law School


In this edition (#3)…

March 25, 2010

The Fortnightly Review’s Legal Eagle surveys Australian laws addressing cyber-bullying and sexting.  In our second article, lawyer Michael Crawford reports on a recent conference regarding controversial copyright cases – the Telstra directories case, the Men at Work case and the iiNET case.  Finally Associate Professor Paul Jensen provides an economist’s perspective on what the damages in the Men at Work case should be.


Legal Eagle analyses the digital landscape – cyber-bullying and sexting.

March 25, 2010

by Katy Barnett

1. CYBER-BULLYING

Cyber-bullying in Australia – Facebook

It’s not only Lara Bingle and other celebrities who have to worry about cyber-bullying, “sexting” and how to control the publication of generally offensive material. In recent weeks, a few incidents in Australia have raised these questions. First, offensive material was posted on a Facebook tribute page for 12-year-old Brisbane schoolboy Elliott Fletcher, who was stabbed to death by a fellow pupil at his school. Soon after, offensive material was also posted on a Facebook tribute page set up for murdered Bundaberg schoolgirl Trinity Bates. Meanwhile, some members of a Brisbane school formed a Facebook group which mocked the disappearance of Daniel Morcambe in 2003. Some other students from a different school formed a group which bullied a staff member, and were “disciplined”. And apparently there’s a whole genre of photos known as “revenge porn” out there on the web (as the name suggests, it involves an jilted lover posting explicit material about an ex-partner).

Cyber-bullying in the US – the MySpace case

The problem of bullying via the internet is not new. In the US in 2006, the issue came to the attention of the world after a 13-year-old girl named Megan Meier committed suicide. Meier had made contact with a 16-year-old boy named “Josh Evans” on MySpace. The boy purported to be attracted to Meier, but suddenly the tone of the messages turned nasty, and the final message sent from the Evans account said, “Everybody in O’Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” Meier replied, “You’re the kind of boy a girl would kill herself over.” 20 minutes later, she committed suicide.

As it turned out, there was no “Josh Evans”. The profile was fake, and it had been intended to lure Meier into an online relationship with “Josh” to find out what Megan was saying about Sarah Drew, a former friend and neighbour. Sarah’s mother, Lori Drew, and an 18-year-old employee of Lori Drew’s, Ashley Grills helped set up that account and, along with Sarah Drew, sent messages purporting to be from “Josh Evans”.

Lori Drew was prosecuted under the US Computer Fraud and Abuse Act for conspiracy and intentionally causing emotional distress. She was initially found guilty of a misdemeanor breach of the CFAA. On appeal, however, Drew was acquitted, as Wired explains:

The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. But U.S. District Judge George Wu found the premise troubling.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Cyber-bullying in the UK – Facebook case

By contrast, in a recent UK case last year (briefly summarised here) an 18-year-old girl was sentenced to imprisonment after threatening to kill another girl on her Facebook page update. This was the first case of its kind in the United Kingdom.

Cyber-bulling in Europe

Meanwhile, in Italy, Google executives have recently been convicted of privacy violation for hosting a video in which a boy with autism is being bullied and taunted by four other classmates.

2. SEXTING

And then there is the difficulty of “sexting” (sending sexually explicit pictures via the Internet or via mobile phones).  In the US people who send sexually explicit messages are potentially placed on a sexual offenders’ register, and in Queensland at least, there is legislation  which could result in a similar situation.

However, it has been criticised by those who feel that naive teenagers may be ensnared by the laws. Certainly in other States as well, the photography and distribution of pictures of the genital or anal area is a criminal offence (see eg, s 41B and s 41C, Summary Offences Act 1966 (Vic)). Apparently, a survey in an Australian teen magazine revealed 40% of readers had been asked to send a naked or semi-naked image of themselves over the internet.

3. Current Civil Laws in Australia

All these cases raise a number of important questions. How far should the providers of social networking sites and other sites control what happens on these sites? Does the law operate to prevent this kind of conduct, and should it be amended to do so? To an extent, it all depends how far one believes the law should reach, and whether the law can usefully regulate conduct such as this. My own interest, of course, is on the civil law (rather than criminal law) and whether it can be usefully be adapted in a way that protects people from being bullied on the internet, but also allows reasonable freedom of speech.

Note that the criminal law in this area is being currently being reviewed by the Senate.  The ACMA has also released their third and final report on “Online risk and safety in the digital economy.

Defamation

Defamation could be used against bullies who target a particular individual online, as it prevents publications which injure reputation by disparaging a person, causing others to shun or avoid a person, or subjecting a person to hatred, ridicule and contempt. Anonymity is not necessarily a protection against defamation, either. In a case in the US involving model Liskula Cohen, Google, who hosts Blogger, was forced to hand over the details of an anonymous blogger so that the blogger could be served with a defamation writ. (Of course, the defamation action could be said to be counterproductive, as it meant that the details of the defamatory statement were far more widely publicised than they would otherwise have been – a phenomenon known as the “Streisand effect“.)

Breach of Confidence

There may also be situations where an online communication may constitute a breach of confidence (particularly if images or content had been posted on a private setting, but are then broadcast publicly without the consent of the owner).

Breach of a “Tort of Privacy” ?

In Australia, at least, it would be more difficult to allege a breach of privacy. The most we have are some obiter comments from the High Court in ABC v Lenah Game Meats, in which it was concluded that Victoria Park Racing v Taylor did not preclude the development of a tort of invasion of privacy in Australia.

Some lower courts have since recognised an action for invasion of privacy.

  • In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy.”
  • In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered.)
  • In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy.
  • And most recently, in Giller v Procopets, Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue.

So in Australia, at least, any tort of breach of privacy is nascent. Conversely, English breach of confidence law is much more clearly moving towards breach of privacy because of the influence of the European Convention on Human Rights (ECHR).

“Intentional Infliction of Mental Suffering”?

Also in Giller v Procopets, Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm.

In the US there is already a well established tort of intentional inflection of mental suffering (see for example, this post on the US case, Moreno v Hanford Sentinel). Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Conversely, Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that a bully may be sued for intentional infliction of mental distress if US law is taken on board here.

Jurisdiction

Of course, with the internet, there may be a problem with jurisdiction if the wrongdoer is interstate or overseas, but Australian authority at this point suggests the courts are willing to work around this. Controversially, in the Gutnick case, the court allowed Joe Gutnick to sue for defamation in Victoria despite the fact that the defamatory material was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria.

3. CONCLUSION

Perhaps if a few cases are brought against online bullies, it may bring awareness to people that what they are doing is wrong in law, not just morally wrong. Still, I can’t help thinking that a large number of perpetrators of online bullying would be likely to be teenagers against whom there would be little point in proceeding. I suspect criminal courts would be unwilling to lumber young people with a criminal record, and in civil claims, it is unlikely that young people would be able to pay damages. The law can only go so far. It’s also up to parents to supervise their children as much as they can, and to educate their children about the risks of allowing people to take compromising images of themselves.

Katy Barnett is a PhD candidate at the Melbourne Law School


Follow

Get every new post delivered to your Inbox.

Join 2,857 other followers