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the courts, involves charges against a cyber-
bully whose regular and persistent torments
and bullying using the internet and mobile
phones allegedly caused a student, then in
Year 12, to commit suicide.
Identifying cyberbullying behaviour
Like other forms of discrimination and
harassment, it's the reception of the cyber-
bullying behaviour by the individual being
bullied -- the way the victim receives the
behaviour -- that is the most important
aspect in identifying whether the behaviour
A good illustration of this was the contro-
versy over the 'blackface' skit on Channel 9's
Hey Hey It's Saturday 'reunion' show late
last year. Harry Connick Jr, who was a judge
of the show's Red Faces talent segment, was
offended by the skit.
As Red Symonds observed, though, writ-
ing for Crikey, 'Americans are offended by
"blackface." Australians are largely not. It's
culturally specific and we have no particu-
lar history in regards to minstrel shows and
"the portrayal of black people in these shows
depicting them as buffoonish, lazy, supersti-
tious 'coons' who were thieves, pathological
liars and lascivious devils."'
The importance of the way the victim
receives the behaviour was recently recog-
nised in Victoria when a teenage girl who
had been bullied by fellow students when
attending a regional primary school since
the age of seven was permitted to seek com-
pensation from the government as a victim of
crime. Victorian Supreme CourtJustice Tony
Cavanough ruled that the impact of the bul-
lying on the young person was a determin-
ing factor, despite the perpetrators being too
young under Victorian law to have formed
criminal responsibility for their actions.
Younger and more naïve pupils, vulner-
able and emotionally fragile teenagers and
teenagers at risk of mental health condi-
tions are in a high-risk category to experi-
ence cyberbullying. The young people most
at risk are often searching for acceptance.
They are vulnerable to manipulation and
have difficulty in making clear choices for
themselves. They're often less attentive to
safety messages, may be less resilient, are
often less willing to seek parental help and
are less likely to report cyberbullying.
The good news is that cyberbullying can
be tracked down. While face-to-face bullies
have the capacity to deny their behaviour,
the online evidence trail of cyberbullying
is frequently retrievable. The bad news is
that the current legal framework struggles
to deal with it.
The law as it stands can address cyberbully-
ing in terms of:
threats and the misuse of telecommunica-
the manufacturing of child pornography,
discrimination or vilification.
While it has been accepted in some lower
courts that breaching a person's privacy can
amount to an actionable tort, the law has not
yet been settled by superior courts.
In Gross v Purvis in the Queensland
District Court, the then Mayor of the
Maroochy Shire Council brought a civil action
against a former colleague who had repeat-
edly stalked and harassed her for around eight
years. Senior Judge Tony Skoien awarded her
approximately $178,000 in damages because
of her former colleague's harassing behaviour
and intrusion into her privacy.
As Senior Judge Skoien explained in that
case, 'It is not my task nor my intent to state
the limits of the cause of action nor any spe-
cial defences other than is necessary for the
purposes of this case. In my view the essen-
tial elements would be:
(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 consid-
ered highly offensive to a reasonable person
of ordinary sensibilities,
(d) and which causes the plaintiff detri-
ment in the form of mental psychological
or emotional harm or distress or which pre-
vents or hinders the plaintiff from doing an
act which she is lawfully entitled to do.'
Defamation occurs where a publication
is made that damages the character or
good reputation of another person. Legal
defences to defamation also offer some pro-
tection for minors.
In a recent High Court case on defama-
tion, Au stralian Broadc asting Corporation v
O'Neill, the HighCourt removedan injunc-
tion preventing the Australian Broadcasting
Corporation from televising 'The Fisherman'
a documentary that was defamatory about
the respondent, a convicted murderer,
on the basis that the televising was in the
public interest. The program was about
unsolved crimes, including the murders of
the Beaumont children, that the respondent
was alleged to have committed.
Threats to do injur y
Threats to do injury may include breaches of
the Commonwealth Telecommunications Act
1997. A breach will occur where telecommu-
nications equipment is used for the purposes
of harassment or abuse. A person convicted
of such an offence may be punished, with a
conviction being recorded, a fine imposed or
A recent example is the case of R v Hooper.
In that case, a dispute arose between family
members about the borrowing of a mobile
phone charger. The accused had been feel-
ing frustrated for some time about the victim
taking his things and not contributing to the
household and also not working. In frustra-
tion, following the borrowing of his mobile
phone charger, the accused called and sub-
sequently texted the victim, threatening to
break people's fingers, cut heads off and 'teach
you guys a...lesson in life you will regret'.
The recipient of the text was concerned
for his safety.
The offender was found to have commit-
ted an offence under section 474.17(1) of the
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