What is the legal definition of cyberstalking?
In New South Wales it is illegal to stalk another person, even if that stalking occurs online. This is a type of cybercrime referred to as cyberstalking.
This law is derived from s13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
- A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
S8 of the Act defines stalking as:
(1)(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behavior.
A person who is found guilty of this offence faces a maximum of five years imprisonment and/or a $5,500 fine.
In addition to the above, the Criminal Code Act 1995 (Cth) also criminalises a number of different actions that are associated or may constitute cyberstalking.
Examples of cyberstalking
Examples of cyberstalking include:
- Repeatedly calling or texting someone.
- Making unwanted comments on someone’s Facebook post.
- Repeatedly sending unwanted private messages on Instagram.
- “Cat fishing” somebody (pretending to be someone else in order to seek their affection).
Potential defences
A number of defences may be available if you are facing a charge of cyberstalking:
Intention – if one can establish that they did not intend to stalk or intimidate then that may be a successful defence to this charge.
Necessity – where a person is compelled by a threat of danger to commit the offence.
Duress – where a person commits the offence due to pressure or undue persuasion by another person.
