Section 23 of the Cybercrime Code Act 2016 protects any person, of any age.
Section 23(1) — the offence
(a) initiate; or (b) facilitate; or (c) participate in,
any communication or online discussion or posts regarding another person, directly or indirectly — with or without any exchange of messages or recordings — with the person harassed, for the purpose of —
(i) coercing, intimidating, threatening, harassing, stalking, or causing emotional distress; or
(ii) supporting such repeated acts,
in respect of that person, is guilty of a misdemeanour.
Penalty: child offender, subject to the Juvenile Justice Act 2014 — detention up to 3 years, or an ICT prohibition for the term plus two years, or both; adult offender — imprisonment up to 7 years, or an ICT prohibition, or both.
Section 22 or section 23?
| s 22 — bullying | s 23 — harassment | |
|---|---|---|
| Victim | A child — under 18 | Another person — any age |
| Communication | With or regarding a child | Regarding another person |
| Purposes | Bullying, intimidating, threatening, demeaning, ridiculing, stalking, causing emotional distress | Coercing, intimidating, threatening, harassing, stalking, causing emotional distress |
| Basic maximum (adult) | 7 years, or ICT prohibition, or both | |
| Where harm results | 25 years | 10 years |
| Where death results | Life imprisonment | |
| Additional offence | — | s 23(4) — vulgar or obscene commentary |
Section 22 includes demeaning and ridiculing, which section 23 does not. Section 23 includes coercing and harassing, which section 22 does not.
The distinction reflects the different wrongs: bullying a child is characteristically about humiliation; harassing an adult is characteristically about pressure and persistence.
Both share intimidating, threatening, stalking and causing emotional distress.
Initiate, facilitate, participate
As with section 22, three verbs cover the whole of an episode — and participating in a thread is enough.
Combined with sub-paragraph (ii) — acting for the purpose of supporting such repeated acts — the section reaches everyone taking part in a coordinated campaign, not only the person who started it.
And note “regarding another person, directly or indirectly”, “with or without any exchange of messages ... with the person harassed”. The target need never see the material. A group discussion about a person, which they never receive, is within the section.
The recklessness limb
The opening words include “or recklessly”. A person who participates in a thread with conscious disregard of a substantial risk of intimidating or distressing the subject can commit the offence.
The purposes in sub-paragraph (i) still have to be established, but recklessness in the participation is enough to satisfy the opening mental element. See the article on mental elements.
Where the line falls
“Causing emotional distress” is a wide purpose. Sustained public criticism of an individual, a campaign of complaints, or repeated commentary about a person’s conduct can distress them.
Section 1(2)(b) acknowledges that the Act restricts freedom of expression under section 46 of the Constitution, and states that the restriction is necessary and reasonably justifiable in the public interest.
But note what section 23 does not contain. Unlike section 21, it has:
- No defence of truth, public benefit, fair comment or good faith;
- No burden shift;
- No incorporation of the section 362E public interest protection — section 21(9) applies that protection “to this section”, meaning section 21.
The only limits are the elements themselves: the conduct must be done intentionally or recklessly, without lawful excuse or justification or in excess of one, and for the purpose of one of the six matters in sub-paragraph (i).
The practical significance is that legitimate criticism must be directed at the conduct or the issue, not pursued as a campaign against the person, and must not be carried on for a purpose within the list.
How the offence escalates
- Section 23(2) — where the offence results in psychological harm or physical injury: a crime, 10 years for an adult, five years’ detention for a child.
- Section 23(3) — where it results in death: imprisonment for life for a child offender as well as an adult, together with an ICT prohibition.
- Section 23(4) — a separate crime of posting vulgar, obscene or profane commentary, whether or not directed at anyone in particular.
Sections 23(1) and (2) are listed in Schedule 2 and may be dealt with summarily. Sections 23(3) and (4) are not. Child offender penalties are collected in the article on child penalties, and practical guidance in what you may post about someone online.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 5, 21–23, 48; Schedule 2
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262) — s 362E
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.