High tech laws needed for high tech crimes:
Cyber Stalking
Louise Fairbairn FORTE FAMILY LAWYERS and James Milsom BRIMBANK MELTON
COMMUNITY LEGAL CENTRE
Tips for practitioners
1. Be aware of the difficulties in identifying cyberstalking.
2. If you are concerned that one of your clients has
been a victim of cyberstalking refer them to
someone who specializes in this area (if you do
not).
3. Help educate people about this complex area of
law.
4. Be aware of your personal online presence.
The face of today’s criminal offender is drastically
different from that of 20 years ago. Today, criminal
offences can be committed from the other side of the
planet … without leaving home. In 1943, IBM’s CEO
Thomas Watson said “there is a world market for maybe
five computers”.1 Computers take so many different
forms today, whether as phones, tablets, laptops, desktop
computers or others entirely, meaning new and unique
cyber crimes constantly await invention.2
It seems there is no limitation on what crimes can be
committed. Legislating against potential future crimes is
almost impossible and creates the first problem with
policing cybercrime. Legislators must take an open
ended approach, leaving open the possibility of capturing future crimes. In Victoria, cyber stalking is defined
in s 21A(2) of the Crimes Act 1958 (Vic) as:3
(ba) publishing on the Internet or by an e-mail or other
electronic communication to any person a statement or other materialt
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the
victim or any other person.
(bb) causing an unauthorised computer function (within
the meaning of subd (6) of Div 3) in a computer
owned or used by the victim or any other person.
(bc) tracing the victim’s or any other person’s use of
theInternetorofe-mailorotherelectroniccommunications.
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This legislation is limited such that it is powerless to
combat the ever expanding nature of cyber stalking. The
anonymity and plausible deniability common to crimes
committed over the internet mean that threats and
physical danger that go hand in hand with real world
harassment will increase as access to the Internet becomes
more common.4
What is cyber stalking?
A person who commits an illegal act using a computer with an ulterior motive is known as a cyber
criminal.5 One of the fastest growing cyber crimes is
referred to as cyber stalking. This involves either an
individual or a group of individuals using digital media
in a way that causes others to suffer emotional distress.6
Repeated harassment over the internet over a period of
time results in cyber stalking.7
There are various mediums through which cyber
stalking can be carried out. These include chat rooms,
email, blogs, and social networking tools like Facebook
and Twitter.8 This is a serious crime and can lead to
other criminal acts including physical violence, identity
theft,9 forgery and criminal intimidation,10 as well as
potential civil wrongs.
Cyber bullying
A growing concern among younger internet users is
the emergence of cyber bullying. This is a form of cyber
stalking and involves the interaction of two young
people using the internet, cellphones, or any type of
digital technology. Cyber bullying involves specific or
general harassment as well as humiliation and embarrassment.11
One reason cyber bullying has grown in prevalence
so quickly is that individuals will often say things online
that they would not say in person, hiding behind their
online social persona. This is often then passed off as
playful banter rather than treated as a crime. This type of
harassment can have very harmful effects, much like it’s
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December 2014
in person form, on younger generations. The true long
term psychological effects cannot be fully understood
because social media is still very much in its infancy.
Effects, such as emotional distress and withdrawal from
social network sites12 or even withdrawal from day to
day life itself, are very common.13 In the most extreme
cases cyber bullying can lead to severe emotional
distress brought about by the online aggression and
result in victims taking their own lives.14 Cyber stalking
must be treated as a serious offence and those engaging
in this form of harassment should face serious penalties
including potential imprisonment.15
The growth of cyber stalking
Social media has revolutionised the way people share
experiences with each other. One only has to travel on
public transport to observe passengers madly checking
Facebook status updates or Tweeting their last quirky
thought. Each of these individual social profiles represents an avenue for harassment to occur.16 Although the
growth of cyber stalking has been fast and aggressive,
the reaction by legislature and courts has been painstakingly slow. By the same token, government sponsored
educational campaigns targeting cyber stalking have not
been a priority.
Today, most Australians have a very different understanding of what constitutes a punishable offence when
it comes to cyber crime. Otherwise protective parents
might be lax in acting on these impulses due to a poor
understanding of the potential for harm to be done to
their children online. Cyber criminals have new tools at
their disposal every day and as a consequence are
becoming more adaptive than ever before.17
It is pivotal that the Australian government invests in
an advertising campaign to educate the general public on
what should be reported. Most importantly, an accessible
avenue to report cyber crime should be the main
message of any public education campaign. This may
make it easier for cyber stalking and bullying to be
identified and ceased at an early stage. While there have
been laws passed that specifically define cyber stalking,18 this is not enough to combat this dynamic crime.
Marketing as a form of cyber stalking
Cyber stalking is not just limited to individuals and
groups of individuals. Social media has become an
extremely important tool for businesses to expand their
reach. It is truly a global problem with India being the
front-running country for the generation of “spam”.19
This can take the form of a simple email and has evolved
into more serious crimes such as computer hacking.20
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Today almost half of Australians feel uncomfortable
with being targeted by online companies.21 Individuals
can be left being pigeon holed into a category that does
not reflect their true self.
Difficulties with legislating against cyber
stalking
Before attempting to recommend the appropriate
reforms and responses to cyber-crime, it is first important to identify the difficulties and restrictions needing to
be addressed. The rapid development in technology and
consequential rise in cyber crime has caught both
legislators and the general public unaware of how to
respond. Possibly the biggest limitation with cyber
crimes and more specifically cyber stalking is that the
general public is unaware of the various resources and
services available for law enforcement. Especially with
respect to the tyrannical distance between offenders and
victims in many instances, this leads to a significant
amount of unreported cyber-crimes.
When cyber stalking occurs a common response is
for victims to try to deal with this internally, perhaps
feeling a sense of embarrassment or shame. As with
numerous other offences, where reporting rates are low
it is difficult to accurately calculate the prevalence of
offending. Additionally, social media often blurs cultural
and geographic boundaries, and therefore it is difficult
— and quite subjective — to discern where to draw the
line between benign teasing and cyber harassment.22
The internet provides a playground for users to be
anonymous, creating plausible deniability for their actions.
When a crime is actually reported it is difficult to locate
the suspect, given the global reach of the internet. This
leads to significant global issues. Investigations are very
time consuming and often searches are fruitless due to
the ability of offenders to obscure their origins. Effectively, this ends the investigations or at least significantly restricts them. Correspondence with large online
companies such as Google, Hotmail, Yahoo, Twitter and
Facebook is also quite time consuming with no guarantee of locating a suspect given the anonymous nature of
internet use.23
Keeping up with technological advances and the
changing social habits of Australians has formed a
theme of this article. The government has no choice but
to pass legislation in a broad manner, opening offences
to interpretation to enable the ongoing utility of the law.
This deliberately lax regulation forms yet another challenge when policing cyber stalking. As a result, privacy
of information is often easily breached due to insufficient or overly ambiguous rules and regulations.24 At
this stage there has been no legal procedure formulated
to collect, analyse or present evidence in court.25
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Finally as has been alluded to throughout the article,
there is inadequate training and funding dedicated to
cyber crime. Training to enable the policing of online
activity is cumbersome and has not yet formed a major
priority for the Australian government.
Recommendations to improve the fight
against cyber stalking
For change to a occur there needs to be a commitment
across a number of bodies including the general public,
information technology experts, courts, politicians, social
organisations and international support from other countries. Creating awareness among lawyers, police, the
judiciary and users can play a key role in the security of
information and most importantly identifying offenders.
As a first step, focus groups should be formed to
understand the cause as well as the solution. These
groups could play a key role in how to frame new
legislation and ultimately how to enforce the law. This
may result in a new legislative regime that captures all of
the aspects of cyber crime that has emerged, and it needs
to have the flexibility to allow for advancing technology.
Social networks form a very important part in the
fight against cyber-crime. Organizations such as Facebook
have been pro-active in preventing harassment in social
media and need to continue to lead the charge. Social
media organisations as well as network protectors have
an obligation to continue to develop tools to make it
easier to prevent cyber stalking, bullying and other
forms of cyber crime.26 As software becomes available
this should be publicised and circulated by the Government to enable accessibility to end users. Education is
the key to addressing this issue.
Conclusion
There is a dire need for evolving a code of ethics on
cyber space. Informing the Australian public is important so that Australians know how to report, what to
report and where to go if they feel they are being subject
to cyber stalking, bullying or another form of cybercrime.
Educating the public is the first step to stopping the
fast evolution of this crime and overcoming the shortfalls in difficulties with legislating. Since the cyber
world has no boundaries, it is a herculean task to frame
laws which can cover each and every aspect but education is the first and most important step.
It is also of the utmost importance that any new
legislative or enforcement regime be composed in a
manner that does not interfere with rights afforded to
citizens under the various charters to which Australia is
signatory. The right to privacy, for example, is of great
significance and, while it causes some difficulty in
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addressing cyber crimes, it must not be eroded or set
aside simply to enable the prosecution of the few
offenders exploiting it.
What can you do? As individuals we might feel
helpless in this fight against cyberstalking, however we
can help by educating people around us about this
difficult and dynamic problem. Be aware that this may
be a problem faced by some of your clients. It is
important to be able to identify this at an early stage so
that you can assist you client in relation to this and refer
them onto someone with expertise in this area. Lastly,
ensure that your conduct online adheres to all codes of
ethics you are subjected to. Ensure that nothing you are
posting online in your private capacity could be misinterpreted or interpreted as cyber bullying or cyber
stalking.
Louise Fairbairn
Associate
Forte Family Lawyers
www.fortefamilylawyers.com.au
James Milsom
Deputy Managing Lawyer
Brimbank Melton Community Legal Centre
www.communitywest.org.au
Footnotes
1.
2.
3.
4.
5.
6.
Remark attributed to TJ Watson (Chairman of the Board of
International Business Machines) circa 1943.
Professor W Anderson, “Cyber Stalking (Cyber Bullying) —
Proof and Punishment” Missouri State University, 2010.
Crimes Act 1958 (Vic) No. 6231/1958: Pt 1 — Offences,
s 21A(2).
See eg, M Slater and C Bryden, “I can see you: harassment and
stalking on the Internet” Information & Communications
Technology Law Vol 18, No 2, June 2009, 99-122.
Above, n 4.
P Bocij (2004) Cyberstalking: Harassment in the Internet age
8.
and how to protect your family. Westport, CT: Praeger.
T Laer, “The Means to Justify the End: Combating Cyber
Harassment in Social Media”, J Bus Ethics (2014) 123:85-98.
Above, n 2.
9.
Above, n 2.
10.
R Chouhan, “Cyber Crimes: Evolution, Detection and Future
Challenges” Journal of Information Technology (2014), pp
7.
48–55.
11.
Above, n 2.
12.
J Avery (2010) Gender bender brand hijacks and consumer
revolt: The Porsche Cayenne story. In J Avery, S Beatty, M B
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13.
14.
15.
16.
17.
Holbrook, R V Kozinets, & B Mittal (Eds), Consumer behavior: Human pursuit of happiness in the world of goods (pp
645–9). Cincinnati, OH: Open Mentis.
Above, n 7.
I Parker “The story of a suicide: A gay freshman and the online
world” The New Yorker, 6 February 2012.
Above, n 14.
D M Boyd & N B Ellison (2007). Social network sites:
Definition, history, and scholarship. Journal of Computer —
Mediated Communication, 13(1), pp 210–30.
Above, n 10.
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December 2014
18.
Above, n 3.
19.
Above, n 10, p 50.
20.
Above, n 10.
21.
A Hayes, Cyber “stalking”? Bandt.com.au, 29 March 2013.
22.
Above, n 13, p 95.
23.
Above, n 10, p 53.
24.
Above, n 10, p 49.
25.
Above, n 10, p 53.
26.
DK Citron (2009) Law’s expressive value in combating cyber
gender harassment. Michigan Law Review, 108(3), pp 373–415.
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