ATAR Notes: Forum
HSC Stuff => HSC Humanities Stuff => HSC Subjects + Help => HSC Legal Studies => Topic started by: georgiia on May 19, 2017, 12:32:53 pm
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Outline the legal issues that exist in cyberspace.
Evaluate the effectiveness of the legal system in dealing with the crime cyber-bullying.
‘Cyberspace’ is the official term used to describe the global network of independent information technology infrastructures, telecommunications networks and computer pressing systems. Despite the significant benefits which may come as result of technological advances, there are some aspects of this online interaction and use of technology that may cause breeches in both civil and criminal law. Some of these cybercrime involve; identity theft, fraud, hacking, copyright breach, and cyberbullying. Like with every other area of human activity, whether it be in a school environment, workplace or public setting, there is a need for law to be applicable in cyberspace. The cyberspace legislative framework must ensure that all parties accessing technology have adequate legal protection along with access to legal remedies if individual rights are violated.
However, the ‘Cyber-world’ can not be claimed as falling under the exclusive jurisdiction of a nation state or judicial body due to its global nature. This poses challenges and concerns for the judicial system which must debate upon who's hands the responsibility of finding legal remedies when individuals’ rights have been violated falls to.
Cyberbullying describes the use of information and communication technologies including computers, mobile phones, social networking sites, chat forums and even emailing services to perform deliberate, repeated harassing and abusive behaviours targeted at an individual. Dr. Dan Olweus expresses his definition of cyberbullying which has come to be culturally understood and accepted as; “an aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend him or herself.” Some behaviours perceived as acts of cyberbullying include posting a humiliating and defamatory photos on public forums or social networks without consent, sending unwanted messages which belittle and insult a target, making threats to groups or individuals through technology, and creating false profiles to express misleading information whilst concealing anonymity.
A survey conducted in 2014 reviewing over 500 Australian primary and high school students showed that 52% of young people had experienced personally targeted cyber-bullying. The survey also showed that about the same number had participated and engaged in inflicting similar activities targeting others. The impact of advancements in technology has lead our society to produce an army of technology-reliant young adults causing the issue of cyber-bulling to reach an ultimate high. It is incredibly easy for a cyber-bully to hide his/her identity online as well as to enlist the support of others in victimising and displaying hostile behaviours towards an individual with a slim change of being caught. Another impact of technology in seeing the expand in cyber-bullying behaviour, is the availability and 24 hour global access provided by the internet. Unlike a few years ago where bullying predominantly took place in the school environment, technology has become responsible for allowing 24/7 pathways to contact and target an individual.
As the use of telecommunication devices and internet networks has so rapidly inclined, the issue of cyberbullying is regarded as somewhat new. Despite the global nature of cyberspace and the absence of exclusive judicial control tying the cyber-world to one governmental body, cyberbullying crimes in Australia are covered by listing laws agains personal threats and harassment. Many citizens remain unaware of the severity and penalties that these crimes hold in Australia. It is important to report abuse of the telecommunications system to the Australian Federal Police (AFP) who hold the responsibility of dealing with crimes in this area and with assisting young people. Under the Crimes Legislation Amendment (Telecommunications Offences & Other Measures) Act (No. 2) 2004 (Cth) , it states that it is an offence to use a “postal of similar service to menace, harass or cause offence”. The internet and mobile phone network is regarded under this law as a “similar service” meaning that in our internet-reliant 21st century society, cyberbullying is illegal. Other legal avenues which supposedly protect but do not prevent cases of cyber-bullying include the stalking and harassment laws existing in all Australian jurisdictions, NSW’s intimidation of annoyance offence laws and the criminal defamation laws as stated in the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
There is a limited amount of Australian cyber-bullying case law due to its relatively recent growth and because of the number of cases go unreported. However, the case involving Shane Gerada in the Melbourne Magistrates’ court in April 2010 is a very significant case when assessing legal implications with regard to cyber-bullying. The case involved 21 year old Shane Gerada who reportedly sent over 300 threatening text messages to a previous friend, Allem Halkic. Gerada also took advantage of known social networking platforms to falsely claim defaming and humiliating information about Halkic. On February 5th 2009, Allem Halkic took his own life by jumping from Melbourne’s West Gate Bridge. The issue in dispute was what crime Gerada had committed, if any. Gerada pleaded guilty to his charge of stalking via cyberbullying and the case closed with him receiving an 18-month community based order as a sentence. The magistrate, Peter Reardon concluded with expressing that “A message need[ed] to be sent to the community that this sort of act should be punished.”
Despite known instances of successful charges against cyberbullying, and the protection provided by staling and harassment laws in Australia, a major difficulty in enforcing rights with regard to cyber-bullying is actually being able to prove that your rights have been violated. Another problem in enforcing cyber-bullying rights is attempting to fit it into a legal context. Traditionally bullying has been an issue which occurred within the playground, in a school setting. Within this context, teachers are informed by system policies which guided them in terms of dealing with instances of bullying. With the rapidly increasing shift from playground bullying to cyber-space bullying, teachers easily remain oblivious to the harassment and torment endured by victimised students. Cyberbullying, unlike traditional forms of bullying, often does not one to the attention of teacher and parents until the problem has grown out of proportion. There are however a number of ways that police which have identified which may assist in addressing or extinguishing the issue before it goes out of hand. These suggestions include notifying the school and ensuring children are encouraged to share their problems with either parents or trusted adults, blocking a senders messages if repeated or unwanted and lastly if the harassment continues, reporting the issue to the police.
Some argue that there is little need in reforming laws with regard to cyber bullying. This is as most cyberbullying crimes are covered by current state and federal legislation through avenues such as stalking and harassment laws, intimidation of annoyance laws and thorough taking out an apprehended violence order (AVO). On the contrary, law reform commissions and Australian parliaments have considered implementing law reform strategies such as a seperate regulatory authority to control social network site in a similar manner to ACMA’s (the Australian Communications and Media Authority) regulation of radio and television broadcasting. The discussed law reform strategies and pathways to future dealings with cyberbullying, although providing avenues of redress for the victim, they do not allow a mechanism for enforcing law and conduct rules for cyberspace as an entirety. As cyberspace is a global platform lacking single ownership of jurisdiction, on one country can not regulate rules which are obligatory for all nation states to abide by.
The Declaration of the Independence of Cyberspace endorses the idea that governments do not nor should not have any degree of legitimacy within cyberspace. Those who ‘gather’ in cyberspace need to be aware of the possibilities of cybercrime; namely cyberbullying, and by participating in internet use and social interaction via telecommunication platforms one declares their awareness of the democratic, egalitarian social contract extinguishing any need for external controls. The DIC’s approach to rights within the cyber-world coincide with any many internet commentators’ laissez-faire approach, advocating that they do not think cyberspace should be regulated in any way. They express that individuals should be capable of determining how they shall conduct themselves within their online presence.
In conclusion, Australian laws provide sound protection for victims of cyberbullying but lack in providing a sustained, globally endorsed, regulated means of judicial power in cyber-space. Harassment, stalking and torment laws may be used as a temporary solution too a growing problem which will not go away any time soon. Or until the internet is slow. The most effective way of preventing, prosecuting and extinguishing the increase of cybercrime infesting our internet-dependant lives is by moving towards introducing an external authority with independent legislation, enforcement strategies and a case-by-case approach. A binding jurisdiction which is not limited to national boundaries would mean deterring from the inherent tensions between global and local interests, and would provide up to date legislation and review of cases without bias. The cybercrime of cyberbullying would also fall under the wing of this external authority.
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Thanks for sharing this essay Georgia! I've changed the title so people can find it a little easier ;D
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