Phone & Internet Use – Cybercrime

Be careful how you use your phone or social media, it may result in a Criminal Cybercrime offence

We have become a society that relies heavily on our phones, emails, instant messages, Facebook, Twitter, Messenger, WhatsApp, Skype, and all things internet. to send, receive messages for work or play. It is fair to say that our phones, and our internet platforms are likely to be present in many of our day to day interactions with other people.

However, what you say, how often you say it and who you message can have the potential to see you charged with a criminal offence, when it is deemed offensive, harassing or menacing.  

For instance, in October 2015 a man who claimed that whilst drunk he posted offensive comments believing only that what he was doing was so called harmless internet trolling was charged under section 474.17 of the Criminal Code (Cth). Section 474.17 applies across every State in Australia and makes it an offence to use a carriage service to offend, harass or menace and carries a maximum of up to 3 years in prison.

What is considered offensive, harassing or menacing has been given some legal definition. The leading case of Monis v The Queen (2013) 249 CLR 92 stated that a communication will be offensive if a reasonable person looking at the circumstances of the messages has a strong reaction to it.

In another case in South Australia the Court found that the making of seven telephone calls to the home of an ex-employee was harassing conduct, even though nothing was said in the calls by the accused (Daly v Medwell (1985) 40 SASR 281).

In Queensland case of Starkey v Commonwealth Director of Public Prosecution [2013] QDC 124 the Court stated that a communication will be considered menacing even if no physical threat is present. It will be enough when there is a threat of some kind.

Freedom of Speech is no defence

The implied freedom of political communication was attempted to be used as a defence. Whereby, a person is expressing their political opinion on an issue thus, not offensive, harassing or menacing.   

This is exactly what happened in Monis v The Queen. Many will remember Mr Monis from the Lindt Café siege. However, prior to the siege Mr Monis was charged under the similar offence in 474.12. Mr Monis had been sending letters to the family of Australian soldiers killed while on active service in Afghanistan. 

The court was divided when determining whether Mr Monis letters were offensive, harassing or menacing. However, it was clear that the freedom of implied political communication that many associate with free speech will not be a bar to uphold a conviction under the law. 

Your lack of intention or knowledge is no defence   

You may want to argue that you did not intend the information to be categories as offensive, harassing or menacing and merely internet trolling or not meant to cause any harm. However, if police can prove you have been reckless it will be sufficient for police to charge you under section 474.17.

What is Recklessness

Being recklessness means that you were aware that there was substantial risk that the way in which you used the carriage service would be regarded by reasonable people as either offensive, harassing or menacing and you disregarded that risk (see Morgan v District Court of NSW [2017] NSWCA 105 at [36]).  

So, it is worth noting that to be charged under this offence in section 474.17 it need not have been your intention to offend, harass or menace another person. It will suffice that you are aware that reasonable people would find it to be so.  

If you or someone you know has been charged with a criminal offence, contact Rep-Revive Criminal Lawyers for a free initial consultation.


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