Legal Issues Bulletin
No. 42 reviewed April 2012
Legal issues arising for staff subject to cyber bullying and
related behaviour
What is cyber bullying?
Cyber bullying is a form of bullying using text or images posted on personal websites or sent by mobile phone or email.
Depending on the nature of the material posted or transmitted, people who engage in cyber bullying may be committing a
criminal offence.
What is cyber stalking?
Stalking involves a person following another person or watching or frequenting places where the other person goes, such as his
or her home, work or places of recreation. NetAlert Limited, an internet advisory body established by the Commonwealth
Government, describes cyber stalking as occurring when a person is stalked or harassed by another person using an email
service or other electronic message system in a frequent and intrusive manner. The stalking can involve threats or sexual
innuendo. Stalking is generally for the purpose of inducing fear or intimidation.
Is any legal action available if a cyber bully or stalker is requested to cease the behaviour but
fails to do so?
Depending on the particular circumstances, including the nature of the material in question, criminal and or civil action may be
available.
What criminal action can be taken?
The Commonwealth Criminal Code (the Code) provides for various offences involving inappropriate use of emails, telephones
or text messaging. In summary, the Code makes it an offence to use emails, telephones or text messaging:

to make threats to kill or seriously harm a person in circumstances where the person making the threat intends that the
person receiving the threat to be fearful that the threat will be carried out – maximum penalty between 7 and 10 years
imprisonment

in a way, whether by method of use or the content of the communication or both, that a reasonable person would
regard as being menacing, harassing or offensive – maximum penalty 3 years imprisonment.
The NSW Crimes Act 1900 (the Act) also has a number of provisions which may be relevant. In summary, the Act makes it an
offence to:

intimidate a person or his or her family because of that person having either made or not made a decision which he or
she was legally entitled to make or not make – penalty 2 years imprisonment and or $5,500 fine

intimidate a person or his family with a view of compelling that person to do or not do an act which the person has a
legal right to do or not do – penalty 2 years imprisonment and or $5,500 fine
LEGAL SERVICES DIRECTORATE
REVIEWED AND CURRENT AS AT 01/10/2011
WWW.DET.NSW.EDU.AU
For the purposes of the Crimes Act offences, intimidate means:

causing a reasonable apprehension of injury to the person or his/her family or violence or damage to any person or
property

Intimidating a person for the purpose of causing the person to fear physical or psychological harm to him or herself
(including members of his or her family) – penalty 5 years imprisonment and or $5,500 fine
For the purposes of this offence, intimidate means the same as indicated above as well as any conduct amounting to
harassment or molestation or the making of repeated telephone calls.
Can I obtain an Apprehended Personal Violence Order (APVO) if I am subject to cyber bullying
or stalking?
An APVO can be sought if a person has reasonable grounds to fear, and does fear, that another person or persons will harass,
intimidate, molest or stalk him or her. This would include any of these behaviours undertaken by means of emails or websites.
For the purpose of the APVO legislation, “intimidate” includes making repeated telephone calls to a person. The repeated use of
emails or other forms of electronic messaging may also amount to intimidation for the purposes of obtaining an APVO. Legal
Issues Bulletin No. 44 – Apprehended Violence Orders sets out the general requirements for staff seeking APVOs as a result of
work related incidents.
What civil action can be taken?
Depending on the nature of the material, it may be possible to take defamation action against the person responsible. It should
be noted however that in line with government policy, the Department cannot assist staff who wish to pursue defamation
proceedings. Legal Services Directorate can however provide preliminary advice on whether any material is defamatory and the
likely success of legal action. Please refer to Legal Issues Bulletin No 34 – Defamation.
If a website contains offensive material directed to a particular staff member or members, what
action can the Department take to have the material removed?
The Department’s IT HelpServices can take action to block school and/or institute access to the site. Immediate contact should
be made with IT HelpServices.
Abusive junk emails, including the sender’s email address can be forwarded to [email protected] (for DEC employees
only) so that action can be taken to have the email address blocked. This action may be less effective however when different
addresses are used by the sender.
The Department cannot however directly close down any external site. Any decision to close down the site will be a matter for
the site host. If principals, institute managers or office managers believe a non-departmental website contains inappropriate
material about individual staff members, they should contact the site host to discuss the issue.
If principals, institute managers or office managers are unable to identify the host site, the following procedure should be
followed:

determine the site address of the offending site – e.g. www.xyz.org.au

go to the “whois server” address at http://www.fr1.cyberabuse.org/whois/?page=whois_server

enter the details of the offending site to determine who owns the site and how to contact them.
If after following this procedure, principals, institute managers or office managers are unable to determine the host site,
assistance should be sought from the Department’s IT Directorate HelpServices (Intranet only).
If the material in question originates from a DEC controlled website (i.e. school, institute or other DEC location) or through the
DEC email service, the principal, institute manager or office manager should immediately contact the DEC IT HelpServices.
If the material relates to an incident at a school involving violence or weapons, the matter should be referred to the School
Safety and Response Hotline. Officers in the School Safety and Response Unit will provide advice about flagging the material
and managing the incident.
LEGAL SERVICES DIRECTORATE
REVIEWED AND CURRENT AS AT 01/04/2012
WWW.DET.NSW.EDU.AU
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What should I do if I am subject to cyber bullying or stalking arising from my employment?
If you are the victim of cyber bullying or stalking, the following action should be taken:

Immediately report the matter to the principal, institute manager or office manager

If the identity of the person is known, you should immediately make contact with the person and ask that they cease
the relevant behaviour. If the behaviour involves material on a website, you should also ask the person to immediately
remove the offending material.

Report rule breaches to the relevant social media service. Please refer to Legal Services FAQ on cyber bullying and
social media for information about how to do this

If the person refuses to act on any request made, the identity of the person is not known or there are genuine safety
issues which make it inappropriate for you to contact the person, advise your principal, institute manager or office
manager

If the offender is a school or TAFE student, the principal or institute manager should take appropriate action under the
relevant student discipline policy. School principals should also report the matter to the School Safety and Response
Hotline

Where the material is located on a website, the principal, institute manager or office manager should take steps, as
outlined in this bulletin, to have departmental access to the site blocked and the site itself closed down

If considered appropriate, you should report the matter to your local police for further investigation of possible
breaches of the criminal law. Your principal, institute manager or office manager can also take this action on your
behalf

If the offending behaviour gives rise to genuine concerns about the ongoing safety of either yourself or your family, you
should contact the Department’s Legal Services Directorate to seek advice about the possibility of obtaining an
Apprehended Personal Violence Order. Staff should refer to Legal Issues Bulletin No. 44 – Apprehended Violence
Orders for further information regarding apprehended personal violence orders

If you believe that material on a website is defamatory, you can contact the Legal Services Directorate for preliminary
advice on what options may be available

Information and advice can also be obtained from the Commonwealth Government’s NetAlert Limited website at
www.netalert.gov.au
What if the person responsible for the cyber bullying is a parent of a student?
It does not matter. The suggested course of action outlined in this bulletin applies equally to cyber bullying perpetrated by
parents or anyone else.
Other Information
This bulletin should be read in conjunction with the following Department policies which can be found on the Department’s
website at https://www.det.nsw.edu.au/policies/

Anti-Bullying plan for Schools

Code of Conduct

OH&S Risk Management Policy

OH&S Policy

Prevention of Bullying in the Workplace

Safe Working Policy

Social Media Policy

Student Discipline in Government Schools

Suspension and Expulsion of Students

Use by Staff of Employer Communication Devices
LEGAL SERVICES DIRECTORATE
REVIEWED AND CURRENT AS AT 01/04/2012
WWW.DET.NSW.EDU.AU
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Other Useful Links
Social Media & Technology: Guide for Staff
What staff need to know about Social Media and Technology
Where can I get more information about managing social networking incidents?
The Department of Education and Communities’ Safety and Security Directorate has produced a Links Newsletter that provides
a range of practical advice about how to manage a social networking incident.
LEGAL SERVICES DIRECTORATE
REVIEWED AND CURRENT AS AT 01/04/2012
WWW.DET.NSW.EDU.AU
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About Legal Services Directorate
Legal Services Directorate provides legal support and advice to staff in schools, colleges, state
office directorates, senior staff and specialist boards and authorities. It arranges for the
Department and TAFE NSW to be represented before a range of courts and tribunals and
assists with the preparation of legal documents. It is also available to provide legal advice in
respect of any departmental policies or procedures that may have a legal complexion.
The Legal Services Directorate can provide legal advice to departmental staff only.
It is not able to provide legal advice or assistance to parents, students or members of the public.
The Legal Services Directorate posts a large amount of information on the Department’s intranet.
This includes:
 all current Legal Issues Bulletins
 questions the Legal Services Directorate most frequently encounters
 announcements about what’s new
 guidelines about family law and the school
 information about the Government Information (Public Access) Act
 information concerning the operation of NSW Privacy legislation, including Privacy Bulletins
 information about copyright
 links to other related legal web-sites
 other information for the use of schools and TAFE
The Legal Services Directorate continues to offer its telephone advice service
to DEC and TAFE NSW personnel.
The service is available between 9.00am to 5.00pm weekdays.
LEGAL SERVICES DIRECTORATE
REVIEWED AND CURRENT AS AT 01/04/2012
WWW.DET.NSW.EDU.AU
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