Stalking Consultation Paper

8. Responses to cyberstalking

What is cyberstalking?

8.1 Cyberstalking is stalking that can be perpetrated using technology. Another name for it is ‘technology-facilitated abuse’. With rapid changes in technology, and the increasing importance of our online identities, cyberstalking has become a significant and growing social problem.

8.2 Cyberstalking is a type of stalking. It shares the elements of general stalking, namely:

• Surveillance: a person who uses cyberstalking might use tracking devices or spyware. They might also use lawful technology, such as ‘find my device’ apps and social media to keep track of the person they are stalking. This is especially common in family violence cyberstalking.

• Repetition: modern technology makes it easier to repeatedly contact a person, for example by text message, email and social media chat. Blocking a person’s phone number, email address or social media account does not always stop the cyberstalking, as the person who uses stalking might set up multiple accounts to contact the person being stalked.

• Intrusion: given the importance of online identities, repeated messaging through social media can feel like the stalker can access you anywhere. Spyware is also a highly intrusive form of abuse, giving the person who is stalking access to information about a person’s movements, or even video access into their home. With the increasing number of ‘smart devices’ in people’s homes, a person who uses stalking may hack into the victim survivor’s television or even turn their lights on and off. This can make the person being stalked feel unsafe in their home.

• Denigration: posting denigrating comments or images of a person online can be a very damaging form of cyberstalking. Examples include defamatory statements, posting intimate images, or posting images of a Muslim person without their hijab or other religious covering.[219]

Example 1: Cyberstalking[220]

A man was charged with several counts of stalking a public figure via Instagram, and for breaching bail conditions. The man contacted the public figure more than 100 times via Instagram, email, text messages, voicemail, and sent pictures of himself. It was alleged that he was motivated by a desire to form a sexual relationship with her.

Example 2: Cyberstalking[221]

Several years after leaving a religious group, a woman began receiving a barrage of abusive, manipulative and threatening text messages, with the abuse spanning more than a decade. The person stalking used every social media platform available to send messages to their victim and would create new accounts when blocked. The person stalking sent messages threatening suicide, as well as messages imploring the victim to self-harm.

How is cyberstalking experienced by victim survivors?

8.3 The diversity of victim survivors means that cyberstalking can manifest for different people in different ways. For example:

• Women who wear head-coverings for religious or cultural reasons experience shame from having a photograph of them posted online without their head-covering. They may also experience threats of honour killings online or racist trolling.[222]

• Aboriginal victim survivors might experience the risk of being socially isolated from kinship networks and fear of shaming and family retribution from cyber abuse.[223]

• There is a lack of recent data on young people’s experiences of cyberstalking, however the rise of online platforms and increased use of technology by young people potentially exposes them to cyberstalking.[224]

Barriers to victim survivors seeking help for cyberstalking

8.4 The diversity of victim survivors can also mean that some people who are stalked may experience particular barriers to seeking help. For example some people may have lower levels of digital literacy and may not realise that technology-facilitated stalking is a form of abuse.

Question

28 What are the barriers that some victim survivors experience when seeking help for cyberstalking?

What makes cyberstalking difficult to regulate?

Detecting cyberstalking

8.5 A person who is being kept under surveillance using cybertechnology may not be aware of it. Cyberstalking surveillance devices can be hidden. For example, someone may be using a tracking device or spyware to track a person’s movements. A person’s only clue that they are being kept under surveillance may be that they seem to run into the person stalking them everywhere.

Example: GPS tracking[225]

A man stalked his ex-partner and her new partner for more than two months. The person stalking kept both of his victims under surveillance, including by using a GPS tracker. The person stalking made repeated telephone contact, tampered with the brakes on one of the victim’s cars, threw an explosive device at one of the victim’s residence, and fired shots at both victims’ residences.

Question

29 If a person suspects that they are being kept under surveillance using cyberstalking, what kind of help do they need to ensure that they are safe?

Jurisdictional issues

8.6 Cyberstalking is difficult to prevent because many companies that produce the devices or applications that are used to perpetrate the abuse are international. Data is stored in a number of countries, which makes it hard to identify and obtain evidence stored overseas for criminal prosecutions.

8.7 It can be difficult to get a global company to modify its products or services in response to regulation in Victoria. Even if Victoria were to ban such products, they could be imported undetected.

Technological issues

8.8 Forensic technical services are needed to get files that might be evidence of cyberstalking from devices to be used in prosecutions. The ever-increasing number of devices and files such as photos and texts on those devices makes this resource intensive.

How is cyberstalking regulated?

8.9 Cyberstalking is regulated through criminal laws and civil laws, which are a combination of state and Commonwealth laws.

Surveillance

8.10 The criminal offence of stalking in section 21A of the Crimes Act forbids ‘tracing the victim’s or any other person’s use of the Internet or of e-mail or other electronic communications’[226] and ‘keeping the victim or any other person under surveillance’.[227]

8.11 The Surveillance Devices Act 1999 (Vic) forbids the use of listening devices, optical surveillance devices and tracking devices without the consent of the person who is being tracked.[228]

Repetition

8.12 The criminal offence of stalking in the Crimes Act[229] explicitly captures the repetitive nature of stalking.

Intrusion (hacking)

8.13 Intrusion into a person’s life is often achieved by hacking. Hacking often involves both surveillance and intrusion.

8.14 Section 21A of the Crimes Act forbids ‘causing an unauthorised computer function … in a computer owned or used by the victim or any other person’.[230] It is not clear whether a ‘computer’ includes a smartphone.

8.15 The Crimes Act forbids unauthorised modification, impairment and access to restricted (private) data,[231] and identity theft.[232]

8.16 Commonwealth law forbids:

• interception of communication[233]

• use and supply of interception devices[234]

• unauthorised access to, or modification of, restricted data[235]

• unauthorised impairment of electronic communication.[236]

Denigration

8.17 Denigration can include posting degrading comments or images of the victim survivor online. It can be very difficult to combat, as online material can be easily copied and shared, and social media platforms can have lax privacy complaint processes.

8.18 The Crimes Act forbids:[237]

• publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material relating to the victim or any other person or purporting to relate to, or to originate from, the victim or any other person.

• making threats to the person being stalked.

• using abusive or offensive words to or in the presence of the person being stalked.

• performing abusive or offensive acts in the presence of the person being stalked.

• directing abusive or offensive acts towards the person being stalked.

• giving offensive material to the person being stalked or any other person or leaving it where it will be found by, given to or brought to the attention of, the person being stalked or the other person.

8.19 The Commonwealth Criminal Code contains a number of offences related to using the internet or a telephone to perpetrate abuse. They include using the internet or a telephone:

• to make a threat to kill[238]

• to make a threat to cause harm[239]

• to menace, harass or cause offence.[240]

8.20 The Summary Offences Act 1966 (Vic) and the Crimes Act also include a number of offences around the production and distribution of intimate images and child abuse material.

Removing cyberstalking material from the internet

8.21 Personal safety intervention orders can include conditions to stop the respondent from cyberstalking.

8.22 However, once material has been posted online, how can a victim survivor have it removed?

8.23 The Commonwealth eSafety Commissioner has powers with respect to cyberbullying material targeted at children, which overlap with cyberstalking. Children under 18 can make a complaint to the eSafety Commissioner about cyberbullying. A complaint to the social media service should be made in the first instance.

8.24 The Enhancing Online Safety Act 2015 (Cth) establishes a scheme for the rapid removal of cyberbullying material targeting children on participating social media services. The eSafety Commissioner primarily works directly with social media services to have content removed.

8.25 The Commissioner also has powers to issue notices to individuals who post cyberbullying material requiring them to take the material down, refrain from posting further cyberbullying material or apologise for posting the material. An injunction can be sought.

8.26 At present there is no legislative scheme for addressing cyberbullying of adults. However, the Online Safety Bill 2021, currently before the Australian Parliament, would, if passed, expand the eSafety Commissioner’s powers against cyberbullying to adults.

8.27 The eSafety Commissioner also has powers to respond to image-based abuse. This is not limited to children. Image-based abuse may be a component of stalking behaviour.

8.28 The legislation uses the term ‘non-consensual sharing of intimate images’. The scheme gives the eSafety Commissioner the power to give enforceable removal notices to social media services, websites, hosting providers and perpetrators, requiring the removal of intimate material.

Selling or supplying goods or services that can be used for cyberstalking

8.29 Many devices or apps that can be used to facilitate cyberstalking are lawful to sell or possess because they can be used for legitimate purposes. For example:

• Apps can be lawfully used to keep track of a friend or family member’s location with their consent.

• Small tracking devices can be put in a person’s wallet to help them find it when they lose it.

Question

30 In what ways can apps and smart devices be used to facilitate stalking? What controls could be put in place to prevent apps and smart devices being used to facilitate stalking?


  1. Office of the eSafety Commissioner (Cth), ESafety for Women from Culturally and Linguistically Diverse Backgrounds: Summary Report (Report, Office of the eSafety Commissioner (Australia), 18 February 2019) <https://apo.org.au/node/224186>.

  2. Based on a real stalking case heard in a Magistrates’ Court in Victoria, with some details changed to protect anonymity.

  3. Based on a real stalking case heard in a Magistrates’ Court in Victoria, with some details changed to protect anonymity.

  4. Office of the eSafety Commissioner (Cth), ESafety for Women from Culturally and Linguistically Diverse Backgrounds: Summary Report (Report, Office of the eSafety Commissioner (Australia), 18 February 2019) <https://apo.org.au/node/224186>.

  5. ‘Online Safety for Aboriginal and Torres Strait Islander Women Living in Urban Areas’, ESafety Commissioner (Web Page) <https://www.esafety.gov.au/about-us/research/online-safety-aboriginal-and-torres-strait-islander-women-living-urban-areas>.

  6. Rosemary Purcell, Teresa Flower and Paul Mullen, ‘Offence Characteristics and Effectiveness of Intervention Orders’ (Trends & Issues in Crime and Criminal Justice 369, Australian Institute of Criminology, March 2009) <https://www.aic.gov.au/publications/tandi/tandi369>.

  7. Based on a real stalking case heard in the County Court of Victoria, with some details changed to protect anonymity.

  8. Crimes Act 1958 (Vic) s 21A(2)(bc).

  9. Ibid s 21A(2)(f).

  10. Surveillance Devices Act 1999 (Vic) 123.

  11. Crimes Act 1958 (Vic) s 21A(2).

  12. Crimes Act 1958 (Vic) s 21A(2)(bb).

  13. Crimes Act 1958 (Vic).

  14. Ibid.

  15. Telecommunications (Interception and Access) Act 1979 (Cth) s 7.

  16. AG, Criminal Code Act 1995 (Web Page) <https://www.legislation.gov.au/Details/C2020C00245/Html/Volume_1, http://www.legislation.gov.au/Details/C2020C00245>.

  17. Ibid.

  18. Ibid s 477.3.

  19. Crimes Act 1958 (Vic) s 21A.

  20. Criminal Code Act 1995 (Cth) s 474.4.

  21. Ibid s 474.15(2).

  22. Ibid s 474.17.

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