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Module 5 · Communications offences and online safety

What this module covers and why it matters. This module covers the offences that police what people say and send to one another online. Three clusters sit here. The first is the general communications offence that criminalises using a carriage service in a menacing, harassing or offensive way, together with the threat and stalking offences that surround it. The second is the online child grooming and procuring offences, which reach the preparatory conduct of a predator before any sexual contact occurs. The third is the online safety regime and the racist and xenophobic content offences of the First Additional Protocol to the Budapest Convention. This is the last of the pure offence modules and so it sits at the end of the subject's arc from offences to jurisdiction to investigations to cooperation. The doctrinal load matters because these offences feed the 1500-word problem question. The debate load matters more here than in any earlier offence module because the free speech boundary and platform responsibility are prime research-essay territory. The instruments are the Commonwealth carriage-service offences in Part 10.6 of the Criminal Code, the Online Safety Act 2021, and the Additional Protocol.

How to use this guide. The framed boxes give you a scaffold to carry into an answer. The comparison table pins the distinctions the reading guide asks you to draw between cyberstalking, cyber harassment and cyberbullying. The Debate section sets out the live controversies as two-sided contests and each closes with questions to test your own view. Because the assessment includes a 3000-word research essay the Debate section is the part to mine hardest.

Instruments at a glance

Five instruments recur in this module. Meet them once here and then use the table to revise.

Cases at a glance

Attack plan

The general communications offences

What this section covers and why it matters. This section covers the everyday offences that reach threats and abusive messages sent online. It sits first because it supplies the vocabulary the module relies on and because the objective standard it introduces is the single most tested idea here. Each offence requires a carriage service, which the law defines broadly enough to cover a phone call, a text, an email and a social media post alike. The section gives the elements of each offence and then anchors the objective standard to two decided cases.

Start with the threat offences because they are the most serious. The Criminal Code separates a threat to kill from a threat to cause serious harm and grades them accordingly.

Now the central offence. Section 474.17 is the general communications offence and its standard is objective.

Read s 474.17 as a compass because the "reasonable persons" phrase points the analysis outward to a community standard rather than to the sender's intention or the victim's feelings. The compass has three bearings. Menacing points toward threat. Harassing points toward persistent unwanted contact. Offensive points toward content that a reasonable person would find seriously objectionable. You choose the bearing that fits the facts and then test it against the objective standard.

The High Court has explained why the reference to reasonable persons matters. The standard is objective and the offensiveness must be serious before criminal liability attaches.

Anchor the standard to a concrete case. In Crowther v Sala a Queensland resident in a long dispute over polluted air from a TAFE building threatened injury to people at the building with a gun. The Magistrate held that a threat to shoot was menacing on an objective test and rejected the defence that the words were only "Australian colloquialisms" (Crowther v Sala [2007] QCA 133; Urbas ch 10). The lesson is that the objective standard defeats an argument built on the speaker's own idiom.

The offence also reaches harassment that carries no threatening content at all. Some stalking consists of sending thousands of messages that are expressions of romantic love rather than menace, or of the repeated ordering of unwanted goods such as flowers or pizza to the victim's address (Urbas ch 10). The method of use rather than the content is what makes such conduct harassing.

Where the harassing content is intimate the law aggravates the offence.

Consolidation. The general offences run from threats through the objective s 474.17 standard to the aggravated image-based offence. Hold the objective test as the centre. The question is never what the sender meant or how the victim felt alone but what reasonable persons would regard, in all the circumstances, as menacing, harassing or offensive. The offensiveness must be serious.

Cyberstalking, cyber harassment and cyberbullying

What this section covers and why it matters. The reading guide asks you to distinguish cyberstalking, cyber harassment and cyberbullying and to explain both what they share and how they differ. This section draws that distinction. It matters because the three terms are often used loosely and a strong answer separates the criminal conduct from the merely unpleasant and matches each to the right legal response. The three overlap in that each involves unwanted communication through digital means, yet they diverge in the pattern of conduct, the target and the legal route.

Start with what they share. Each translates an offline harm to the online environment. Offensive and harassing behaviour exists in society and moves readily online, where abusive emails and text messages are sent at the click of a button (Urbas ch 10). The shared core is unwanted communication that instils apprehension, distress or humiliation.

Now separate them. Cyberstalking is the online version of stalking. It is persistent behaviour that instils apprehension and fear, adapted to digital mediums. Ogilvie describes three primary forms. Email stalking is direct communication through email. Internet stalking is global communication through the internet. Computer stalking is the unauthorised control of another person's computer (Urbas ch 10, citing Ogilvie). Australian State and Territory stalking offences expressly reach phoning or sending electronic messages, and DPP v Sutcliffe shows the reach. A defendant in Victoria stalked a Canadian actress through phone calls, mail, emails, a website and threats, and the court held the stalking offence applied even though the harmful effect was felt in Canada (DPP v Sutcliffe [2001] VSC 43; Urbas ch 10).

Cyber harassment is the wider category. It captures unwanted, distressing or offensive communication that need not follow the sustained course of conduct stalking requires. A single seriously offensive message can be harassment under s 474.17, while stalking generally requires a pattern. Trolling is a particularly insidious form. It involves posting offensive or inflammatory material to provoke an outraged reaction, with variants such as flaming and griefing in online gaming (Urbas ch 10). R v Hampson is the paradigm. The offender posted grossly offensive manipulated images to Facebook tribute pages memorialising two dead children and was convicted under s 474.17 (R v Hampson [2011] QCA 132; Urbas ch 10).

Cyberbullying is narrower again and is defined by its target and its legal route rather than by a criminal offence of its own. It is harmful online conduct directed at a person, and the law singles out cyberbullying of children for a dedicated civil scheme.

The distinction to carry into an answer is this. Cyberstalking and cyber harassment are criminal offences prosecuted under s 474.17 and State stalking laws. Cyberbullying of a child is addressed primarily through the civil removal powers of the eSafety Commissioner. The three shade into one another because a sustained campaign of bullying may amount to harassment or stalking, but the legal starting point differs.

Cyberstalking, cyber harassment and cyberbullying compared

Consolidation. The three concepts share a core of unwanted digital communication and diverge on pattern, target and legal route. Cyberstalking needs a course of conduct and points to the stalking offences. Cyber harassment can be a single serious message and points to s 474.17. Cyberbullying of a child points first to the civil scheme. Say which you are analysing and match it to its route.

Online child grooming and procuring

What this section covers and why it matters. This section covers the offences that reach a predator's conduct before any sexual contact occurs. It matters because the window to prevent harm is small once grooming is under way, so the law criminalises the preparatory communications rather than waiting for an attempted sex offence. Child exploitation offences including grooming make up by far the greatest number of cybercrime cases investigated and prosecuted in Australia (Urbas ch 9). The section gives the offences as a checklist, explains why no actual child is required, and then shows how that feature enables covert investigation.

Start with the rationale. Grooming is the misuse of computers and the internet to abuse and exploit children, principally by predators who build trust with a victim online before introducing a sexual element and often arranging a meeting (Urbas ch 9). Because the early conduct looks innocent the focus of the law is on the preparatory stage. The better approach is to criminalise grooming separately rather than to rely on the inchoate offence of attempt (Urbas ch 9). The tragic Carly Ryan case, where a fifty-year-old predator posed for months as a fictitious teenage boyfriend before murdering a fifteen-year-old girl, drove Australian reform and gave its name to later grooming legislation (Urbas ch 9).

The Commonwealth offences form a graded set. Read them as a checklist because a problem question turns on matching the conduct to the right rung.

Read s 474.26 and s 474.27 as checklist rules because each is made out only when every listed element is present and the same four elements recur across the set. The offences differ by one word that marks the stage of the predator's conduct. Procuring requires the intention to procure sexual activity. Grooming requires only the intention to make procuring easier, which reaches the earlier trust-building stage. Both stand beside the substantive offence of engaging in sexual activity with a child under 16, which also carries fifteen years (Criminal Code s 474.25A). A further offence catches transmitting indecent material to a child under 16, whether or not it is part of a grooming effort, and carries seven years (Criminal Code s 474.27A).

The feature that does the most work is that the offences need no result and no real child.

This is what enables covert investigation. Because no actual child is required a police officer may pose online as a fictitious child to detect and apprehend a predator rather than wait for a real child to be exposed (Urbas ch 9). Two cases mark the limits. In R v Stubbs and R v Priest the courts rejected the argument that police had aided and abetted the offence. Officers who posed as children did not incite or encourage the sexual conversation but merely provided the suspect the opportunity to offend, which complied with the guideline that undercover police must not act as an agent provocateur (R v Stubbs [2009] ACTSC 63; Urbas ch 9). The line is between providing an opportunity and inciting the crime.

The treaty backdrop matters for the essay. The Budapest Convention itself has no grooming provision. The Council of Europe's Lanzarote Convention fills the gap, and its article 23 criminalises the intentional proposal through communication technologies of an adult to meet a child under the age of consent for a sexual purpose (Urbas ch 9). Australia sets the age of consent for these purposes at 16.

Consolidation. The grooming and procuring offences criminalise preparatory conduct so the law can intervene early. Match the conduct to the rung. Grooming is making procuring easier, procuring is intending sexual activity, and the substantive offence is the activity itself. The absence of a required result or a real child is the feature that both widens the offences and licenses covert policing.

Online safety and platform responsibility

What this section covers and why it matters. This section covers the civil regime that runs alongside the criminal offences and puts duties on platforms. It matters because prosecution is slow and reaches only the individual offender, while the online-safety scheme can require the platform hosting harmful material to take it down quickly. The section explains the eSafety Commissioner's role, the schemes the current Act creates, and how this shifts some responsibility onto the platforms.

Start with the shift from criminal to civil. Australia built a dedicated regulator rather than relying on the police alone. The Enhancing Online Safety for Children Act 2015 created a Children's e-Safety Commissioner within the Australian Communications and Media Authority to receive and act on cyberbullying complaints and to promote online safety (Urbas ch 10). That regime has since been consolidated and widened.

The mechanism is removal rather than prosecution. The Commissioner can investigate a complaint and issue a service provider with a notice to take down harmful content, with the Adult Cyber Abuse Scheme setting a removal window measured in hours (Online Safety Act 2021). This is where platform responsibility enters. The scheme treats the platform as the addressee of the duty to act on harmful material, which is a different model from charging the person who posted it.

Anchor the point. Suppose a troll posts grossly offensive material about a child to a social media page. The criminal route under s 474.17 targets the troll and may take months. The civil route under the Online Safety Act targets the platform and requires the material to come down quickly. The two run in parallel and neither displaces the other.

The debate about how far to push platform responsibility is set out below. Note here that the online-safety model is civil and preventive, aimed at removing harm and at requiring providers to detect and act, rather than at punishing an offender after the fact.

Consolidation. The online-safety regime is the civil counterpart to the criminal offences. The eSafety Commissioner's removal powers put a duty on platforms to act on harmful material. In a problem question consider this route in parallel with any prosecution because it reaches the platform and works faster.

Racist and xenophobic content

What this section covers and why it matters. This section covers the offences that target hateful content and the reason Australia has not adopted them wholesale. It matters because racist and xenophobic material online is the sharpest point of the free speech debate and because the treaty position diverges from the domestic one. The section explains the Additional Protocol, why it is separate from the Budapest Convention, and how Australia currently responds.

Start with the gap in the main treaty. The Budapest Convention has no provision directed at online vilification (Urbas ch 10). The response was a separate optional instrument.

The Protocol is optional and contested precisely because it criminalises speech. The United States declines it on free speech grounds because the First Amendment protects much of the material the Protocol would criminalise. This is why the content offences sit in a separate protocol rather than in the Convention itself, so that states which cannot accept them can still join the core treaty.

Australia has not acceded to the Protocol. Acceding would likely require amending the Racial Discrimination Act 1975 to add racial vilification offences, which at present exist only in some State and Territory legislation (Urbas ch 10). The current Australian position is mixed. Racially vilifying material on websites has been ordered removed under the Racial Discrimination Act 1975, but that is a civil remedy rather than a criminal prosecution (Urbas ch 10). Criminal vilification exists at State level, for example the serious racial vilification offence in s 24 of the Racial and Religious Tolerance Act 2001 (Vic), which reaches conduct that includes internet or email publication and that is intended and known to be likely to incite hatred and to threaten physical harm (Urbas ch 10).

Consolidation. The Additional Protocol supplies the content offences the Budapest Convention lacks and its optional status reflects the free speech divide. Australia meets online racial hatred mainly through the civil Racial Discrimination Act plus scattered State criminal offences rather than through a dedicated Commonwealth crime, and has not acceded to the Protocol.

Common confusions

These are the errors that cost marks. Each states the mistake and then the correction.

Debate

The Debate section carries the research-essay load, so each strand is set out as a contest with the leading voices named. Each closes with questions to test a position rather than settle it.

Where is the boundary between protected speech and criminal harassment or hate speech? The general offence in s 474.17 and the content offences of the Additional Protocol both criminalise expression, which puts them in tension with free speech. On one side, the objective standard is a deliberate limit. The High Court in Monis stressed that the offensiveness must be serious and that the reasonable-person construct filters out mere subjective offence, which keeps the offence away from robust but lawful speech (Monis v The Queen [2013] HCA 4). On the other side, an objective community standard is uncertain at the margins and may chill speech that a tolerant society should accept, and Urbas notes that a specific statutory reference to reasonable persons is unusual and invites the question whether anything would be lost by omitting it (Urbas ch 10). The hate-speech offences sharpen the divide. The United States treats the Additional Protocol's content offences as incompatible with the First Amendment and declines them, while European states accept that racist and xenophobic material may be criminalised (First Additional Protocol; Urbas ch 10). Australia sits between the two and relies mainly on a civil remedy under the Racial Discrimination Act rather than a criminal one.

• Does the objective "reasonable persons" standard draw the line between protected and criminal speech clearly enough to avoid chilling lawful expression?
• Is the United States right that criminalising racist content is incompatible with free speech, or is the European position that some hate speech falls outside protection the better view?

How far should platforms be responsible for detecting and preventing grooming and harmful content? The online-safety model puts duties on platforms rather than only on offenders. In favour of that model, prosecution reaches only the individual and works slowly, while the eSafety Commissioner's removal powers reach the material quickly and can require providers to act on complaints and to build in safety by design (Online Safety Act 2021; Urbas ch 10). Against a heavier duty, platforms are not the authors of the content and general monitoring raises concerns about surveillance, over-removal of lawful speech and the practical burden of policing vast volumes of communication. Grooming is the hardest case. Detecting it early requires monitoring private conversations, which collides with the privacy of the very users the scheme protects, yet the small window to prevent harm is the reason the law intervenes early in the first place (Urbas ch 9). The question is how much of the detection burden should shift from the police to the private platform.

• Should platforms bear a positive duty to detect grooming, given that early detection requires monitoring private communications?
• Does moving from prosecuting offenders to ordering platforms to remove content improve protection, or does it outsource censorship to private companies?

Should communications offences apply the same online as offline? A recurring question is whether the internet needs its own offences or whether old offences stretched to new means suffice. In favour of equivalence, harassment, threats and stalking are the same harms whether delivered by letter or by message, and the carriage-service offences and the extension of stalking laws to electronic communication reflect a deliberate choice to treat them alike (Urbas ch 10; DPP v Sutcliffe). Against strict equivalence, the online environment changes the conduct in ways the debate in Module 1 identified. Scale lets one offender reach thousands, anonymity shields the offender and complicates proof, and material stays online indefinitely, so the same words can do far greater harm online than off (Urbas ch 10). Grooming shows the limit of pure equivalence. The offline law of attempt was thought inadequate, so Parliament created dedicated preparatory offences that have no clean offline analogue (Urbas ch 9). The question is whether online conduct differs enough in degree to justify offences that differ in kind.

• Are online harassment and threats different enough from their offline forms to justify separate offences, or should the same law govern both?
• Do the scale and permanence of online communication justify heavier penalties or wider offences than the offline equivalents carry?

Discussion prompts

1. Explain how the objective standard in s 474.17 distinguishes protected online speech from communications the criminal law should punish, and assess whether the "reasonable persons" test and the requirement of serious offensiveness draw that line well.
2. Distinguish cyberstalking, cyber harassment and cyberbullying, setting out what the three share and how they differ in pattern of conduct, target and legal route.
3. Identify the elements that separate lawful online behaviour from the conduct criminalised by ss 474.15, 474.17 and 474.27, and explain what work the mental element and the objective standard each do.
4. Evaluate whether online and offline communications offences should be treated alike, drawing on the equivalence of the underlying harms against the scale, anonymity and permanence of online conduct.
5. Assess the responsibility of online platforms to detect and prevent grooming, weighing the small window to prevent harm against the privacy cost of monitoring private communications.
6. Consider whether Australia should accede to the First Additional Protocol and criminalise racist and xenophobic content, comparing the United States free speech objection with the European position and Australia's current reliance on the Racial Discrimination Act.