The Online Safety Act 2021 (Cth) was passed by the Australian Parliament on 23 June 2021 and came into effect on 23 January 2022.

The second reading speeches to the Act makes clear that its objectives include:

  • Protecting Australian adults from ‘serious online abuse’ by creating an avenue for complaint,
  • Protecting Australian children from cyber bullying by creating mechanisms to capture such content,
  • Implementing rules to facilitate the removal of abusive and otherwise harmful content, and
  • Closing gaps in existing state and territory laws against online abuse.

The Act gives the eSafety Commissioner sweeping information-gathering powers with a view to facilitating the identification and prosecution of those behind online abuse, and requiring internet providers and hosts to remove offending content under threat of heavy fines and injunctions.

Philippines

Meanwhile in the Philippines, a nation which already has heavy penalties for online abuse, the government is considering going a step further by making the act of ‘ghosting’ a criminal offence.

What is ‘ghosting’?

‘Ghosting’ is a term that has emerged with the proliferation of text and social media messaging to describe the practice of abruptly ending communications with a regular contact without explanation.

Also known as ‘icing’, the practice can have a significant adverse impact on the mental health of the ‘ghosted’ or ‘iced’ person.

Arnolfo Teves Jr, the member who introduced the Bill in the Philippines, says the law would only apply to the most extreme cases – such as the abrupt ending of ongoing relationships – and that its primary aim is to educate people on the trauma caused by the practice as well as encourage the ‘moral’ act of giving reasons for terminating contact.

Reasons for, and potential impact of, ghosting

Some may ‘ghost’ others because they simply do not want to deal with the emotional stress or pressure that can go with ending a relationship.

Others may abruptly cease contact without explanation because they want to quickly escape a toxic situation or spare the other person the potential trauma of a protected process of explanations which, in themselves, can be harmful. Still others may just want to exercise their freedom to choose who to and who not to contact, when they wish to do or not to do so.

Whatever the case may be, the reasoning behind the proposed law is to prevent the mental damage that may be caused by the conduct – which can result in the ghosted person feeling confused, distressed and rejected, and can significantly impact on his or her self-esteem.

Does ghosting amount to cyber bullying?

The Human Rights Commission defines cyber bullying as “using the internet, a mobile phone or a camera to hurt or embarrass someone.”

Online bullying and online abuse can take many shapes and forms which can include communications which mock, belittle, spread lies, disseminate private information and post images without permission (revenge porn) or threaten to do so (sextortion).

Current laws in Australia recognise all of these as forms of online abuse, but do not extend to the practice of ghosting, and there is certainly debatable whether the conduct falls withing the Commission’s definition.

Existing laws on sharing intimate images without consent

And while some forms of potentially hurtful conduct, such as ghosting and ‘catfishing’, have not been criminalised in Australia, every state and territory has laws in place which make it a crime to record or share intimate images without consent.

New South Wales

Here in New South Wales these laws, contained in the Crimes Act 1900, make it an offence to record or distribute intimate images without consent, or threaten to do so.

The offences are additional to those against peeping or prying and voyeurism, and are:

Criminal Code Act 1995

Operating nationwide, the Criminal Code Act 1995 (Cth) also contains a range of offences which are intended to prohibit the publication – as well as the hosting – of abusive content online.

These offences include:

  • Section 474.15(1): Using the internet to make a death threat,
  • Section 474.15(2): Using the internet to threaten serious harm,
  • Section 474.17: Using the internet to menace, harass or cause offence,
  • Section 474.19 : Publishing or distributing child pornography online,
  • Section 474.22: Publishing or distributing child abuse material online,
  • Section 474.33: Failing as a content service provider to report abhorrent violent material to police, and
  • Section 474.34: Failing as a content service provider to report abhorrent violent material to police.

Online Safety Act 2021

In addition to these laws, the Online Safety Act 2021 (Cth), which like the Criminal Code Act also applies across Australia, has introduced mechanisms whereby individuals can lodge complaints to the eSafety Commissioner if they believe content is or has been posted online which constitutes cyber bullying or cyber abuse, including image-based abuse such as the unauthorised posting of intimate images or abhorrent material.

The Commissioner has broad powers to gather information with a view to identifying and potentially prosecuting offending individuals and to require internet companies who operate in Australia to remove such content. Those who fail to do so can face fines which run into hundreds of thousands of dollars as well as injunctions that can suspend or even stop them from operating.

The Act also introduces a range of other offences designed to rectify deficiencies in, complement and augment state and territory laws.

Many of these are targeted towards those who provide social media services (including those provided by Facebook, YouTube and Instagram), ‘relevant electronic services’ (including emails, SMS, MMS, online chat and online games) and ‘designated internet services’ (including internet service providers such as Telstra, Vodafone and Optus), but some also relate directly to, or are capable of capturing, individuals.

Offences under the Online Safety Act

One of the offences that directly relates to individuals in contained in section 75 of the Act, which makes it an offence for a person who is ordinarily a resident in Australia to post, or threaten to post, and intimate image of another person who is also ordinarily a resident in Australia without the latter’s consent.

The offence is additional to image-based offences in state and territory legislation, and it carries a maximum penalty of 500 penalty units.

A Commonwealth penalty unit is currently $222, making the maximum penalty for the offence a fine of $111,000. Unlike intimate image laws in New South Wales, the offence does not carry the possibility of a prison sentence.

Other offences under the Act are:

Section 50: Failing to comply with a notice by the eSafety Commissioner to prepare a periodic report on compliance with online safety expectations – 500 penalty units

Section 53: Failing to comply with a determination by the eSafety Commissioner regarding periodic reporting on online safety expectations – 500 penalty units

Section 57: Failing to comply with a written notice by the eSafety Commissioner regarding basic safety online safety expectations. Civil penalty – 500 penalty units

Section 60: Failing to comply with a determination by the eSafety Commissioner regarding determination of non-periodic reporting on basic online safety expectations – 500 penalty units

Section 67: Failing to comply with a removal notice by the eSafety Commissioner regarding providers of a social media service, relevant electronic service or designated internet service or a hosting service provider – 500 penalty units

Section 80: Failing to comply with a removal notice by the eSafety Commissioner regarding providers of certain services, hosting service providers and end-users – 500 penalty units

Section 83(3): Failing to comply with a written direction by the eSafety Commissioner, regarding posting an intimate image – 500 penalty units

Section 91: Failing to comply with a removal notice by the eSafety Commissioner regarding material that is or was cyber-abuse material targeted at an Australian adult – 500 penalty units.

Section 103: Failing to comply with a blocking notice issued by the eSafety Commissioner in relation certain material – 500 penalty units

Section 111: Failing to comply with removal notice issued by the eSafety Commissioner in relation to class 1 material – 500 penalty units

Section 116: Failing to comply with a removal notice issued by the eSafety Commissioner in relation to class 2 material. Compliance with removal notice – 500 penalty units

Section 121: Failing to comply with a remedial notice issued by the eSafety Commissioner in relation to class 2 material. Civil penalty – 500 penalty units

Section 125: Failure to comply with a link deletion notice issued by the eSafety Commissioner regarding material – 500 penalty units

Section 129: Failure to comply with a with an app removal notice issued by the eSafety Commissioner regarding app distribution services posting class 1 material – 500 penalty units

Section 143: Failure to comply with a written notice issued by the eSafety Commissioner regarding industry codes – 500 penalty units

Section 146: Failure to comply with the industry standards – 500 penalty units

Section 153: Failure to comply with the service provider rules issued by the eSafety Commissioner – 500 penalty units

Section 154(4): Failure to comply a written direction issued by the eSafety Commissioner regarding a breach of service provider rules – 500 penalty units

Section 195: Failure to comply with a notice issued by the eSafety Commissioner regarding identity information or contact details – 100 penalty units

Section 205(1): Failure to comply with the requirement to answer a question, give evidence or produce documents – imprisonment for 12 months

Section 205(2): Failure to comply with the requirement to answer a question, give evidence or produce documents -100 penalty units

Making internet bullies accountable or government overreach?

There has always been a tension between, on the one hand, the ability to communicate freely and, on the other, the right to be protected against seriously harmful content – such as hate speech, threats of death and injury and defamatory publications.

And while many might agree that content which incites violence, threatens serious harm or causes significant reputational damage without justification should be sanctioned – whether criminally or civilly – there can be a fine and even indiscernible line between freedom of speech and protection against harm.

Indeed, some might argue we are getting to a point where online censorship is going too far and that ambiguous laws which prohibit and punish the expression of genuinely-held views (whether right or wrong) can create more harm than good, unjustifiably restricting the exchange of information and thereby curtailing democratic freedoms.

It is certainly a balancing exercise – one that can be difficult to get right – and it is hoped that prohibitions enacted by our state, territory and federal governments do not go beyond what is necessary to protect individuals and groups against serious harm.