On 7 September 2017 the Senate referred the following matter to the
Legal and Constitutional Affairs References Committee (the committee) for
inquiry and report by 29 November 2017:
The adequacy of existing offences in the Commonwealth
Criminal Code and of state and territory criminal laws to capture
- the broadcasting of assaults
and other crimes via social media platforms;
- the application of section
474.17 of the Commonwealth Criminal Code 'Using a carriage service to menace,
harass or cause offence', and the adequacy of the penalty, particularly where
the victim of cyberbullying has self-harmed or taken their own life;
- the adequacy of the policies,
procedures and practices of social media platforms in preventing and addressing
- other measures used to combat
cyberbullying predominantly between school children and young people; and
- any other related matter.
On 19 October 2017 the Senate extended the committee's
reporting date to the last sitting day in March 2018.
Conduct of this inquiry
Details of this inquiry were advertised on the committee's website,
including a call for submissions to be received by 13 October 2017.
The committee continued to accept submissions after this deadline. The
committee wrote directly to some organisations inviting them to make
submissions. The committee received 34 submissions, of which three were
received in camera. An attachment to one of the 34 submissions was
also received in camera. The submissions are listed at appendix 1 of
The committee held two public hearings. The first hearing was in
Canberra on 9 February 2018 and the second in Melbourne on 7 March 2018.
A list of witnesses who appeared at the hearings is available at appendix 2.
The committee thanks all those who made submissions or gave evidence at
its public hearings. The committee gives particular thanks to those who gave
evidence regarding the extreme effects of cyberbullying and online abuse on
Structure of this report
There are 5 chapters in this report:
This chapter provides information about the conduct of the
inquiry as well as relevant background.
Chapter 2 examines the nature and prevalence of
Chapter 3 considers the adequacy of existing criminal
Chapter 4 examines the policies, procedures and practices of
social media platforms, as well as education and prevention initiatives.
Chapter 5 provides the committee's view.
The motion referring this matter to the committee was moved by former
The former senator stated that she moved the motion in response to the death of
Libby Bell, a 13 year old girl who resided in South Australia.
Ms Bell committed suicide in August 2017 and her family has said that she
suffered cyberbullying and physical bullying.
The problem of cyberbullying has received significant public attention.
In particular, the committee is aware of a number of youth suicides in recent
years that were linked in the media, to at least some extent, with
cyberbullying. One recent, high profile example is the suicide of
14 year old Amy "Dolly" Everett in January 2018.
The Council of Australian Governments (COAG) discussed cyberbullying at
its meeting on 9 February 2018. The communique from that meeting
Bullying has no place in Australia, and can be especially
harmful on children and young people. The growth of social media and mobile
devices means that Australians can be subject to bullying 24 hours a day and
from any location. Leaders heard from the eSafety Commissioner,
Ms Julie Inman Grant, on initiatives to combat cyberbullying and
acknowledged the ongoing importance of this work. First Ministers agreed that
if we are to successfully reduce the incidence of bullying, we must better
understand its underlying drivers and adopt a whole-of-community approach. COAG
agreed that a working group of senior officials from First Ministers',
Education, Justice and Health departments consider existing and potential
initiatives to help combat bullying and cyberbullying and establish a work
program to be led by the Education Council. The Education Council will report
to COAG at its next meeting on tangible measures where there is an identified
On 19 February 2018, the Queensland Government announced the
formation of an anti‑cyberbullying task force to make recommendations by
31 August 2018. The task force is chaired by Ms Madonna King,
journalist and author.
On 25 February 2018, it was reported that Minister for Education
and Training, Senator the Hon. Simon Birmingham,
Following the discussion of bullying at COAG I have asked all
state education ministers to bring examples of effective anti-bullying programs
and the evidence that supports them to our next education council meeting.
On 28 February 2018, the Prime Minister, the Hon. Malcolm
Turnbull MP, and the Minister for Education and Training,
Senator the Hon. Simon Birmingham, wrote to all school principals
in Australia. Their letter stated: '[w]e encourage you and your school
community to get involved in the National Day of Action against Bullying and
Violence 2018', then upcoming on 16 March 2018.
The eSafety Commissioner
The Children's eSafety Commissioner was established under the Enhancing
Online Safety Act 2015 (Online Safety Act) as an independent statutory
office '...to take a national leadership role in online safety for children.'
In June 2017 the Children's eSafety Commissioner's functions were
expanded to include all Australians, not only Australian children.
Accordingly, the name was changed to the eSafety Commissioner. The broadened
role of the eSafety Commissioner includes:
...functions in relation to persons at risk of family or
domestic violence, in relation to victims of the non-consensual sharing of
intimate images, and in relation to the safe use of the internet by older
A key function of the eSafety Commissioner is to administer a complaints
system for cyberbullying material targeting an Australian child.
The eSafety Commissioner stated that '[t]he scheme empowers the office to
remove cyberbullying material that is posted online quickly. It is the only one
of its kind in the world...'.
However, the 2017 expansion did not extend the cyberbullying complaints
scheme to adults; the scheme remains limited to cyberbullying material
targeting an Australian child. The Explanatory Memorandum for the relevant bill
This is because while the Government recognises that online
dangers such as cyber-bullying apply to both adults and children, there are
existing avenues, including existing criminal laws, which apply to using the
internet to menace and harass people of all ages.
In our society, there are a range of areas where extra
protections are put in place for children consistent with Australia’s
obligations under the [Convention on the Rights of the Child]. The Government
considers child victims of cyber-bullying a priority.
The Government does not consider there is any need to create
any new powers to investigate cyberbullying complaints between adults at this
Since the Office of the eSafety Commissioner (eSafety Office) was
established in July 2015, '...the Commissioner has resolved approximately
550 complaints in relation to cyberbullying material.'
Between 1 October 2017 and 31 January 2018, cyberbullying
complaints to the eSafety Office increased by 30% compared to the same period
12 months prior.
In addition, the eSafety Office has referred approximately 6,000 young
Australians to the Kids Helpline.
The committee notes that it is plausible that there are many more cases of
cyberbullying than indicated by these figures, as many cases would not be
reported to the eSafety Commissioner.
The eSafety Office manages these cyberbullying cases, and its other
work, with a staff of approximately 78 and a budget of about $17 million per
annum. The team that deals with cyberbullying complaints is comprised of four
The tier scheme for cyberbullying
The Online Safety Act '...establishes a two-tiered scheme for the rapid
removal from social media services of cyberbullying material targeted at an
The eSafety Office explained that:
[a] social media service can apply to the Commissioner to be
declared a Tier 1 social media service. To be declared a Tier 1 service,
the Commissioner must be satisfied that the social media service meets certain
basic online safety requirements.
that prohibit cyberbullying, that it provide a clear complaints process for
users, and that it designate a contact person to liaise with the eSafety Office
for the purposes of the Online Safety Act.
The eSafety Commissioner can issue a notice requesting that a
Tier 1 service remove cyberbullying material within 48 hours:
Non-compliance with a notice by a Tier 1 service does not
attract a legal penalty. However, if a Tier 1 service repeatedly fails to
comply with a request to remove material, or if it no longer complies with the
Act’s basic online safety requirements under section 21 of the Act, the
Commissioner can revoke its tier 1 status.
The Commissioner may also publish a statement on the
Commissioner’s website to the effect that a Tier 1 social media service has
failed to remove material when requested.
A social media service may be declared as Tier 2 by the minister on
recommendation from the eSafety Commissioner. To make such a recommendation, the
eSafety Commissioner '...must be satisfied that the service is a "large
social media service", or that the service has requested to be a
Tier 2 service.'
Tier 2 services are '... subject to somewhat more interventionist
The eSafety Commissioner may issue a Tier 2 service with a notice
requiring the service to remove cyberbullying material within 48 hours.
However, the material must have first been reported to the service by a user,
and 48 hours must have elapsed since that time. If a Tier 2 service
does not comply with a notice then enforcement action may be taken.
This tier scheme was summarised by the eSafety Office follows:
Basically, the tier 1 scheme is an opt-in scheme, so a
company can volunteer. However, in the instances where we've identified that a
lot of cyberbullying is occurring on a particular site and we've invited them
to become tier 1 but they didn't elect to take up that offer or invitation, we
can declare them or recommend that they be declared tier 2, which, in turn,
gives us more enforcement power.
Currently, the social media services declared as Tier 1 are: airG,
Ask.fm, Snapchat, Twitter, Yahoo!7 Answers, and Yahoo!7 Groups. The services
declared as Tier 2 are: Facebook, Google+, Instagram, and Youtube.
The eSafety Commissioner's discretionary
The eSafety Commissioner has '...a broad range of discretionary powers and
The eSafety Commissioner stated that:
[t]his includes fines of up to $18,000 a day for tier 2
social media sites that do not comply with our take-down notices. While this
might be pocket change for some of the behemoths, using our position to name
and shame, and to make a reputational impact, cannot be underestimated.
The eSafety Commissioner has not yet used its formal powers or issued
any civil penalties as it has not yet considered this to be appropriate.'
The eSafety Commissioner may also issue an end‑user notice to an
individual person who posted cyberbullying material, requiring them to:
take all reasonable steps to ensure the removal of the material;
refrain from posting any cyberbullying material targeting a
apologise for posting the material.
The eSafety Office submitted that it '...recognise[s] the need to be
proportionate and balanced in how discretionary powers might be used to deal
with cyberbullying', particularly where the cyberbullying material was posted
by a child.
The eSafety Office stated that it has not yet issued any end‑user
To date, the cases handled by the Office have not warranted
such an intervention. Each has been resolved through the 'hybrid' approach of
taking the material down quickly whilst also working with schools, parents and
Australian Cybercrime Online
The Australian Cybercrime Online Reporting Network (ACORN) is:
...a national policing initiative of the Commonwealth, State
and Territory governments. It is a national online system that allows the
public to securely report instances of cybercrime. It will also provide advice
to help people recognise and avoid common types of cybercrime.
The ACORN was '...a key initiative under the 2013 National Plan to
The ACORN's website lists cyberbullying as a type of cybercrime.
Existing policies and legislation
The committee heard evidence about polices and legislation that relate
to cyberbullying both in Australia and overseas.
In general, Commonwealth offences that could apply to cyberbullying relate
to the misuse of carriage services. These offences are examined in greater
detail in Chapter 3.
State and territory criminal offences that could apply to cyberbullying
vary between jurisdictions. Generally speaking, there are a variety of offences
in each jurisdiction that could apply to cyberbullying behaviours. These
offences tend to relate to stalking, harassment, assault, threats, and
Some examples of specific offences are as follows:
Section 60E of the Crimes Act 1900 (New South Wales)
contains '...a criminal provision for bullying which makes it an offence to
assault, stalk, harass or intimidate any school student or member of staff of a
school while the student or member of staff is attending a school.'
The maximum penalty ranges from five to 12 years' imprisonment depending on the
severity of the offence. While this provision could apply to cyberbullying,
'...the necessary act must take place at a school', thereby limiting the
application of the offence.
Part 5A of the Summary Offences Act 1953 (South
Australia) includes a range of offences relating to cyberbullying and the non‑consensual
sharing of intimate images. This includes offences against humiliating or
degrading filming, distribution of an invasive image, indecent filming, and
threatening to distribute invasive images.
"Brodie's Law" in Victoria makes serious bullying a
criminal offence by extending '...the definition of stalking in section 21A of
the Crimes Act 1958 (Vic) to specifically include behaviour that could
lead a person to self-harm.'
The offence is punishable by up to 10 years' imprisonment, and could apply to
The offence was introduced following the passage of the Crimes Amendment
(Bullying) Bill 2011 in June 2011. It is known as "Brodie's
Law", named after Ms Brodie Panlock who committed suicide in 2006 at
age 19 after suffering bullying in her workplace.
Non-consensual sharing of
The committee heard evidence relating to the non‑consensual
sharing of intimate images as a further type of cyberbullying.
In May 2017 all Australian jurisdictions agreed, through the Law, Crime and
Community Safety Council, to the National Statement of principles relating
to the criminalisation of the non‑consensual sharing of intimate images.
These principles are non‑binding and state:
This document identifies best practice principles to be considered
as each jurisdiction continues to develop and review its criminal law, policy
and practices to suit local needs, and for each jurisdiction to adopt and
implement as that jurisdiction sees fit.
Most Australian states and territories have introduced offences that
specifically relate to the non‑consensual sharing of intimate images.
On 6 December 2017 the Enhancing Online Safety (Non‑consensual
Sharing of Intimate Images) Bill 2017 was introduced into the Senate by the Assistant Minister to the Prime Minister,
Senator the Hon. James McGrath. The bill would introduce a
civil penalty regime for the non-consensual sharing of intimate images, with
penalties of up to $105,000 for an individual and $525,000 for a body
corporate. The regime would be administered by the eSafety Commissioner.
The bill passed the Senate with amendments on 14 February 2018.
The bill was amended to:
require the minister to cause an independent review of the
operation of the bill to be conducted within three years, and to table a copy
of the review's report in parliament; and
introduce criminal offences relating to the non‑consensual
sharing of intimate images.
At the time of writing, the bill is before the House of Representatives.
Harmful Digital Communications Act
2015 (New Zealand)
Some submitters referred to New Zealand's Harmful Digital
Communications Act 2015 (Harmful Communications Act) as potentially
useful for considering reform in Australia.
Key features of the Harmful Communications Act include the following:
Making it a criminal offence to '...post a digital communication
with the intention that it cause harm to a victim...', where posting the
communication harmed the victim and would have caused harm '...to an ordinary
reasonable person in the position of the victim...'.
The offence is punishable by up to two years' imprisonment or a maximum fine of
$50,000 for individuals or $200,000 for companies.
Establishing an approved agency to resolve complaints about
harmful digital communications. NetSafe has been appointed as the approved
Enabling a court to hear civil proceedings about serious or
repeated harmful digital communications. The court does not issue fines or
prison terms, but can order certain remedies. Failure to comply with these
orders is punishable by up to six months' imprisonment or a fine of $5,000
for individuals or $20,000 for companies. The court is able '...to order a broad
range of remedies...', which include:
orders to take down material;
orders to publish a correction or an apology, or to give the
complainant a right of reply;
orders to release the identity of the source of an anonymous
ordering name suppression for any parties.
Limiting the liability of telecommunications companies and social
media platforms for harmful content posted by others, as long as those
companies follow a certain procedure for users' complaints.
Making it a criminal offence to incite someone to commit suicide,
regardless of whether or not the person attempts suicide (previously, it was only
an offence if the person attempted or committed suicide). The offence is
punishable by up to three years' imprisonment.
During his second reading speech on the bills that established the Australian
eSafety Commissioner, the then Parliamentary Secretary to the Minister for
Communications, the Hon. Paul Fletcher MP, referred to
various elements of the Harmful Communications Act that had been considered.
Network Enforcement Law in Germany
The Netzwerkdurchsetzungsgesetz (also known as NetzDG or Network
Enforcement Law) places various obligations on social media platforms in
Germany. It was passed in June 2017 and came into force in early October 2017,
although there was a transition period until 1 January 2018.
The Network Enforcement Law applies to social media platforms that have
over two million registered users in Germany.
It requires the platforms to block or remove access to:
'manifestly unlawful content' within 24 hours of receiving a complaint,
'unlawful content' within seven days of receiving a complaint.
The meaning of 'unlawful content' is limited to content that contravenes
certain enumerated criminal offences. These offences include those relating to
hate speech, inciting others to violence or crime, terrorist offences,
glorifying violence, defamation, insult, and child pornography.
The Network Enforcement Law also requires social media platforms to:
maintain an effective procedure for users to make complaints
publish half‑yearly reports providing certain specified
data relating to the implementation of the law,
name and authorise a person to receive service in Germany.
Failing to meet the requirements of the Network Enforcement Law can
result in fines of up to 50 million euros.
USA Communications Decency Act 1996
The eSafety Commissioner explained that legislation in the United States
of America '...has given the social media sites what is called intermediary
liability—what I believe some of them now call intermediary immunity—which says
that they're not responsible for anything that users do on their platform.'
This is under the Communications Decency Act 1996, of which subsection 230(c)(1)
No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided by another
information content provider.
Note on references
In this report, references to Committee Hansard are to proof
transcripts. Page numbers may vary between proof and official transcripts.
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