Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697635455244.pdf (Australia)
Maurice Blackburn Lawyers Since 1919 Maurice Blackburn Pty Limited ABN 21 105 657 949 Level 10 456 Lonsdale Street Melbourne VIC 3000 PO Box 523 Melbourne VIC 3001 DX 466 Melbourne T (03) 9605 2700 F (03) 9258 9600 29 January 2018 Committee Secretary Senate Legal and Constitutional Affairs Committee PO Box 6100 Parliament House Canberra ACT 2600 By email: legcon.sen@aph.gov.au Dear Sir/Madam, We welcome the opportunity to provide feedback in relation to the adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying.
Maurice Blackburn Pty Ltd is a plaintiff law firm with 32 permanent offices and 29 visiting offices throughout all mainland States and Territories.

The firm specialises in personal injuries, medical negligence, employment and industrial law, dust diseases, superannuation (particularly total and permanent disability claims).

negligent financial and other advice, and consumer and commercial class actions.
Maurice Blackburn employs over 1 OOO staff, includ ing approximately 330 lawyers who provide advice and assistance to thousands of clients each year.

The advice services are often provided free of charge as it is firm policy in many areas to give the first consultation for free.

The firm also has a substantial social justice practice.

Our Submission: Maurice Blackburn believes that the most effective way to regulate cyber violence is through a concurrent public/private approach.
We believe that we will not see serious change in offending behaviours until we have a. holistic process in place which incorporates: • Regulation and criminal sanctions holding the behaviours of abusers, employers and carriage services to account, and • A civil regime through which victims and survivors of online abuse can access legal tools to allow them to seek relief and damages.

In providing comment to each of the Terms of Reference, we offer members of the Committee an insight into what we.
through our experience in working with victims of cyber violence, believe to be the most effective course of action for Australia, if we are to address and mitigate the serious impacts of these behaviours.
www.mauriceblackbum.com.au Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29 Our comments relating to Term of Reference (a) • the broadcasting of assaults and other crimes via social media platforms: • Maurice Blackbum is concerned about the impacts that cyber violence is having on many Australians under the current, mostly unregulated on-line environment.
• We draw the Committee's attention to the effects of exposure to cyberbullying by those whose work, by necessity, involves interaction via social media platforms.

• In particular, we are concerned by the reports from journalists and those involved the media about the prevalence and impacts of cyberbullying.

• Maurice Blackburn perceives cyberbullying as a modern extension of bullying.
The current definitions of bullying are reasonably well known in the workplace context, and most employers are well attuned to ensuring their workplace is free of bullying type behaviours.

The same cannot be said, however, of all employers in relation to cyberbullying .

• We believe that employers must be held accountable for creating a work environment that exposes their employees to the risk of cyber violence.
• We are aware that some employers in the media industry, for example, have expectations of their staff relating to their on-line inputs, and set key performance indicators in areas such as the number of 'hits' a story receives.

• Journalists are also frequently expected by their employers to participate in on-line discussions that emanate from their story.

Some employees have reported that employers expect them to express personal opinions in relation to on-line stories.
We are concerned that these 'forced' interactions are exposing media professionals to cyberbullying.
• We note the MEAA's reporting on this matter: "The lived experience of many MEAA members working in the media industry is of being regularly subjected to harassment, abuse and threats on social media".1 MEAA also notes that "Some members have suffered diagnosable psychiatric injuries as a consequence of cyber abuse"2 • There appears to be clear differences in the impacts of interaction with the readership, between on-line arid traditional media functions.

These include: o Anonymity.


Reports suggest that anonymity may be a determining factor in whether on-line input is threatening , abusive or personal.

It seems probable that the ability to hide behind anonymity might be an enabler of cyberbullying.

Journalists, on the other hand, are encouraged to use their own names.

This inequality is concerning in the workplace context.

Immediacy.

Responding to on-line media does not encourage introspection or the tempering of language.
o o The perception that 'the rules are different on-line'.

Threats made on-line seem to be held to a different standard of accountability than if they were made via any other mechanism.

Some of the current academic work around 'online disinhibition' is worthy of exploration.

1 Ref Media Entertainment and Arts Alliance submission to this enquiry 2 Ref Media Entertainment and Arts Alliance submission to the Victorian Government's enquiry into Cyber Abuse and Violence.
Page2 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29 Our Submission: • Maurice Blackburn submits that changes to the regulatory environment in relation to cyberbullying must include enforceable sanctions against employers who fail in their duty to provide a safe workplace for their employees. '
• Maurice Blackburn encourages the Committee to consider ways that employers can assist in creating a workplace where the broadcasting of assaults and other crimes via social media platforms does not impact an employee's right to a safe work environment.
Our comments relating to Term of Reference {b) • 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.

• Maurice Blackburn is of the opinion that criminal sanctions need to exist as part of a suite of responses inhibiting the probability of cyberbullying.
• Maurice Blackburn believes that engagement in cyberbullying is, in many cases, an extension of the proponent's likelihood to engage in bullying and other anti-social behaviours.

Criminalisation alone will not be the most effective inhibitor of these behaviours.

That section 474.17 has been in existence for more than a decade, its effectiveness as a deterrent is obviously questionable.
Our Submission: • We submit that any discussion on the efficacy or possible reform of section 474.17 must be done in the context of the wider discussion on identifying a holistic course of action which will lead to a reduction in cyber violence.

Please see our response to Term of Reference (e) for more detail on this submission.
Our comments relating to Term of Reference (c) - the adequacy of the policies, procedures and practices of social media platforms in preventing and addressing cyberbullying • Maurice Blackbum sees social media platforms as an enabler of cyber violence, and we submit that they should be held accountable for this.
• We believe that social media platforms have a social and ethical responsibility to assist in the minimisation of online bullying, and suggest that the introduction of an appropriate regulatory responsibility would encourage greater action from these bodies in stamping out cyber violence.
Our Submission: • In the absence of a holistic criminal/civil approach to cyberbullying (see our response to TOR (e)), we submit that strengthening the policies and procedures of social media platforms would be a useful stop-gap measure.

Page 3 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29 • We believe that.

at a minimum.
the policies and procedures adopted by social media platforms should reflect the requirements of section 474.17. as well as recognise their social and ethical responsibility, and aspire to: o Educate service users on how to identify cyberbullying - this will involve clearly defining the term and its impacts, o Educate service users on the process for lodging a complaint, o Educate service users on the current criminal implications of cyber violence, o Commit to adequately resourcing the monitoring of its platform, o Respond efficiently and empathically to reported breaches of their policies and criminal codes - including the removal of offending content, o Assist external agencies in prosecuting offenders, and o Respond quickly to requests from agencies such as ACORN in removing offending materials.
• We look to social media outlets to give consideration as to how they can assist employers to ensure that employees are not being exposed to cyberbullying via their platforms.

Our comments relating to Term of Reference (d) - other measures used to combat cyberbullying predominantly between school children and young people No response to this TOR.
Our comments relating to Term of Reference (e) - any other related matter • We believe that a legislative framework is needed which incorporates: o Regulation and criminal sanctions holding the behaviours of abusers, employers and carriage services to account, and o A civil regime through which victims and survivors of online abuse can access legal tools to allow them to seek relief and damages.

• This will necessitate criminalising particularly nefarious behaviours.
and then providing the relevant police and regulatory services with the resources to successfully prosecute people engaging in cyber violence.

• We believe that, for this to have the required deterrent effect, it is important that all those who cause, enable or expose people to cyber violence should be held to account, and this that includes employers, and social media platforms, as well as those who generate and distribute the abusive material.
• We recognise, however, that given the scope and pervasiveness of cyber violence (which has led to this enquiry).

no regulator or law enforcement agency, no matter how well equipped, will be in a position to effectively deal with every case, let alone every extreme case.

Hence the need for a concurrent civil process which provides citizens with the tools required to achieve appropriate redress.
Page4 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29 • Maurice Blackburn, though its study of international models, has identified New Zealand's Harmful Digital Communications Act (2015) as a potential basis for an Australian framework.

• The Harmful Digital Communications Act 2015 (New Zealand) has introduced criminal offences alongside a civil regime as a means for combatting and preventing cyberbullying.
• The Act articulates ten communication principles which, if breached, can be investigated by a statutory body established under the Act, and failing that, the courts.

The statutory body can order that the offending materials be removed, and require a correction and/or an apology.

Further, the Act allows for the release of the identity of anonymous abusers.
• The Act also criminalises online abuse where: o o o the abuser intends a digital communication to cause harm, it would reasonably expect the person in the position of the victim to be harmed, and the individual suffers serious emotional distress.

• The Act also amended the Crimes Act 1961 (New Zealand) making it a crime to incite a person to commit suicide.
Our Submission: • Maurice Blackburn commends the Harmful Digital Communications Act 2015 (New Zealand) to the Committee as a useful model for reimagining how a criminal code and a civil regime to combat cyberbullying in Australia might be implemented.
• We submit that any discussion on criminality and penalties must also recognise that it is important to give individuals the legal tools to allow them to: o Seek injunctive relief and damages from the perpetrators of cyber violence, and o Seek injunctive relief and damages from the providers and facilitators of online forums where the provider or facilitator has failed to discharge a duty to monitor and protect users.
• We recognise that significant work would need to go into exploring how this model could be adopted to suit Australian jurisdictions.

Maurice Blackburn would be pleased to offer our experience in such matters to work with members of the Committee to scope the potential framework and transitional requirements.
Page 5 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29 Please do not hesitate to contact me and my colleagues on or at if we can further assist with the Working Group's important work.

YoursfaNy, Lj8~an§er ~CTOR,~RICE BLACKBURN Page 6 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 29