The online environment changes the way people interact with business, relationships and social activities. The threats of the cyber environment are real and present, and two of these modern threats is cyberstalking and cyber-harassment. There are three primary methods of cyber stalking: (1) email stalking, which is direct communication by email; (2) internet stalking, which as example, is posts being applied to social media, creating fake websites that are in another persons name, the list is extensive for internet stalking; (3) computer stalking, which is unauthorised control of another person’s computer system, whether being a PC, laptop, or phone.
An appropriate way to describe a stalking incident is through reviewing a recent case of R v Henderson  ACTCA 20 (26 November 2009):
In this case the plaintiff (victim) was attending a fitness centre of which the defendant (stalker) was also attending. On occasions the plaintiff and defendant would exchange courtesies when their paths crossed at the fitness centre. At a particular point in time the defendant obtained the plaintiff’s mobile telephone number without the plaintiff knowing. Between the period from June 2005 to December 2005 the defendant had sent 35 text messages to the plaintiff. Then on 23 December 2005, the defendant left a card on the windscreen of the plaintiff’s car which said; ‘I wanted to get you something expensive and sexy for Christmas … Me …. Love Paul’.
The plaintiff raised a complaint to the police that the defendant was harassing her by the card message and through text messaging. The police advised the plaintiff to send a text message to the defendant to desist from communicating. The defendant texted backed saying he would stop sending texts and would not contact the plaintiff again. No further communication occurred between the plaintiff and defendant after this date until the 8 March 2006, at which time both parties were at a musical event by chance. The defendant approached the plaintiff and touched the plaintiff’s arm. The defendant later in the evening made various comments to the plaintiff as she was leaving with her partner. The plaintiff was concerned with the comments made by the defendant and that her safety, and that of her partners may be at risk.
There was no further communication from the defendant until 6 February 2007 when flowers were ordered by the defendant to the value of $1,000.00 and sent to the plaintiff. The Plaintiff refused to accept the flowers. On 11 February 2007 the plaintiff received a text message from the defendant saying; ‘is that you Kimi, Paul’. No further communication was received by the plaintiff after this date from the defendant.
However, the plaintiff was contacted by police at a later time and informed that the defendant had sent hundreds of text messages to the public text message line of the radio station, Canberra FM. The defendant had become delusional on the belief that the plaintiff was communicating to him through the radio. The plaintiff on being informed by the police was ‘overwhelmed, terrified and anxious', which resulted in the proceedings against the defendant for stalking and harassment.
Under section 21A of the Crimes Act 1958 (Vic) the physical elements of stalking include: engaging in a course of conduct (including contact by text message, email or other electronic communication; publishing on the Internet or by an email or other electronic communication; causing an unauthorised computer function; tracing use of the Internet or of email or electronic communications); and the fault element is where there is an intention of causing physical or mental harm to the victim or arousing apprehension or fear for safety. The maximum penalty applying is 10 years imprisonment.
Cyberstalking is often seen as an event of sending offensive material over the internet. This is not always the case, as harassing behaviour may also involve non-offensive material. As example, some stalking has involved in sending hundreds or even thousands of messages of expressions of romantic love, rather than threatening content. Stalking may also involve the ordering of unwanted items and having these items sent to the victims address, such as pizza or flowers.
In determining whether a complaint is of stalking or harassment, the reasonable persons test is applied, which is based on an objective standard.
There are other forms of cyberstalking which includes, trolling which is an insidious form of harassment, which involves posting offensive or inflammatory comments on websites to provoke an outraged reaction, flaming, griefing, and ‘vilification’ which can be directed at race, ethnicity, religious denomination or sexual orientation.
Harassing behaviour online is generally being called cyberbullying, and this is especially occurring to younger people, but it also happens extensively in the workplace as well. Technology has made it easy for an individual or organisation for that matter to hide their identity and ‘attack’ a person directly through various forms of communication online.
There is no immediate solution for cyberstalking and harassment, accept for switching off the internet on all devices and going analog. However, even then, if a person is intending to stalk or harass another person, they will do it. The best protection is to be vigilant with all online communications, and the moment there is an apprehension for one’s safety, don't delay, get that legal advice to protect your legal rights and interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799 www.legalau.com
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