The Relevance of Technology Neutrality to the Design of Laws to Criminalise Cyberbullying

Abstract

Despite there being widespread agreement that cyberbullying is a serious societal problem, there is little consensus on the laws and policies that should be implemented by government to address this issue. Whilst some commentators frame cyberbullying as a psychosocial problem that is most appropriately addressed through education and public health initiatives others see it as a legal issue that requires legislative reform. Further, whilst some call for the creation of a specific offence of cyberbullying others advance the importance of technology neutrality and recommend prosecuting online and offline bullying behaviour within a single coherent legal framework. In such a context, the purpose of the present article is to examine the adequacy of Australia’s present law and policy on cyberbullying, and consider the merits of creating a dedicated offence of cyberbullying. In this regard, special consideration will be given to the 2018 report of the Senate Legal and Constitutional Affairs References Committee entitled Adequacy of existing offences in the Commonwealth Criminal Code and of State and Territory criminal laws to capture cyberbullying. After considering relevant legislation, case law, scholarly discourse and reform discourse, the paper supports the Senate Committee’s decision to not recommend the creation of a new offence of cyberbullying and suggests that such a course supports technology neutrality and enhances the consistency and longevity of laws in this area.