The frenzy following high profile cases of celebrities apparently under attack from so called “twitter trolls” has recently dominated the media. Robbie Farah, Charlotte Dawson, even the Prime Minister have all been mentioned. The NSW Premier, Barry O’Farrell, has vowed to discuss “what can be done” with the Police commission and Federal Communications Minister.
But what are the current laws that might apply in the case of an individual who uses twitter, or other social media, to engage in so called “trolling” behaviour?
Use Carriage Service Offences
The most obvious offences are the use carriage service offences under the Commonwealth Criminal Code. A “carriage service” is basically any service carrying communication by means of “electromagnetic energy”. For example communication over the internet or telephone.
Using a carriage service to threat to cause serious harm (s.474.15 Criminal Code 1995) carries a maximum penalty of 7 years imprisonment. The less serious offence of using a carriage service to menace, harass or cause offence (s.474.17 Criminal Code 1995) carries a maximum penalty of 3 years imprisonment.
If the conduct involves a threat to kill, the maximum penalty rises to 10 years imprisonment. Importantly, with the threat to kill offence under s.474.15, there must be evidence that the person who made the threat intended that the recipient fear that the threat would actually be carried out.
Proving this intention may be difficult in a twitter related matter where a user posts a comment for all to see. It is arguable that someone who posts an offensive message on twitter, where potentially thousands of people can view the message and also identify who made the comment, has no real intention of carrying out the threat or causing the recipient to fear it would be carried out. It is very different to a person making a private threat where the intention to cause fear might be more obvious.
If a tweet goes beyond what might be viewed as a personal or direct threat, to something that urges other twitter users to commit an offence, there may be an argument that the twitter “troll” is guilty of incitement.
Incitement, under the Commonwealth Criminal Code for example, carries maximum penalties of up to 14 years imprisonment. For this offence to be made out, there would need to be some proof that the twitter “troll”, by their tweets, intended that the offence incited actually be committed. Given the public nature of twitter, the offence of incitement may technically be available.
Threatening a Commonwealth Public Official
With twitter accounts almost standard for most members of parliament, the offence of threatening a Commonwealth public official may apply, section 147.2 of the Commonwealth Criminal Code.
It would still be necessary to prove that the “troll” made a threat to cause serious harm to a public official, and intended that the official feared that the threat would actually be carried out, or was reckless in this regard. The maximum penalties for these offences range between 7 and 10 years imprisonment.
Stalk or Intimidate Offences
Finally, under NSW Legislation, if the nature of the tweets were such that may cause the recipient to fear physical or mental harm, and it can be proved that it was the “troll’s” intention that the person fear that physical or mental harm, the offence of stalk or intimate under s.13 of the Crimes (Domestic and Personal Violence) Act 2007 may be available. This offence carries a maximum penalty of 5 years imprisonment.
Whether or not criminal charges are available, or more importantly appropriate, will always depend on the circumstances surrounding each incident. In addition to the difficulties proving these offences, as well as investigating and finding so called “trolls”, jurisdictional issues may also apply if the individuals are outside Australia.
However, given the offences currently available, and wide scope and variability of social media, it is unlikely that any specific offence would be effective or appropriate.