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Deakin law experts welcome ‘world first’ cyber abuse scheme

New legislation set to tackle harmful online abuse among adults.

Deakin law experts have welcomed proposed new laws that offer greater protection and compensation for adult victims of cyber abuse.

Introduced in December, the Online Safety Bill 2020 has been announced by the federal government as ‘a world-first adult cyber abuse scheme’ that will give the eSafety Commissioner power to order the removal of abusive content within 24 hours and administer heavy fines.

Builds on an existing scheme

Deakin Law School’s (DLS) Professor Marilyn McMahon says the draft legislation builds on a nationwide civil penalties scheme that was introduced in 2015.

‘The original scheme was limited to dealing with the online safety of children but in 2018, it was amended to regulate image-based abuse of adults and prohibited/illegal online content,’ she explains.

‘If the current Bill is passed it will invest the eSafety Commissioner with a new power to deal with the cyber abuse of adults. It will also consolidate the existing regulatory framework by adding instant messaging services, in-game communications, and conduits such as search engines to the social media services and ISPs who currently may be required to take down or block access to abusive or prohibited material.’ 

What defines cyber abuse?

Under current law, adult victims of online harassment, cyberstalking and threats to cause harm, are restricted to means of redress via federal and state/territory laws. 

However, the new Bill proposes a simpler avenue says Dr Vicki Huang, Director of Cyber Law Studies with DLS.

‘This Bill distinguishes the online abuse of children and adults – the former is referred to as “cyber bullying”, while the latter is termed “cyber abuse”. Not surprisingly, there is a higher threshold for cyber abuse when compared with cyber bullying,’ she explains. 

The Bill defines cyber abuse as online material that’s intended to cause serious harm to an Australian adult, or is regarded by an adult as menacing, harassing or offensive, and means that victims will be able to make a complaint to the eSafety Commissioner. 

‘If a complaint is substantiated then the Commissioner has a range of powers, including ordering the service provider to remove “seriously harmful” content within 24 hours. Civil penalties of up to $550,000 for companies and $111,000 for individuals could also be applied,’ says Dr Huang.

Reports v prosecutions

While the eSafety Commissioner doesn’t currently have the power to investigate complaints of cyber abuse involving adult victims, a reporting service does exist and during the 2019-20 financial year, it received more than 1,000 reports of cyber abuse from adult complainants.

When compared with alternatives – such as the criminal prosecution of cyber abusers – this number of reports is significant, says Prof. McMahon.

‘It is, for example, considerably more than the 137 prosecutions in the same time period for the commonwealth offence most commonly relied upon in these circumstances, which is using a carriage service to menace, harass or offend.’

Significant benefits

Prof. McMahon believes scheme’s benefits are likely to extend beyond simply paving a more efficient path of protection for cyber abuse victims.

‘It may also avoid some of the jurisdictional problems that can complicate criminal prosecutions,’ she suggests.

‘Furthermore, because the scheme can require social media services, ISPs, and other services to remove material, it can facilitate the removal of abusive material even when the identity of the original poster is not known – something which is not available under the criminal law.’

While Prof. McMahon and Dr Huang acknowledge there are some concerns about the Bill’s limitations in regard to scams, identity theft, free speech, and how it fits into the regulation of cyber space generally, they agree that overall, it’s set to offer a higher level of scrutiny into what constitutes cyber abuse among adults.

‘While risks relating to over-regulation and the restriction of free speech have been identified, they have been subordinated to the greater goal of protecting adult victims from these cyber harms,’ says Prof. McMahon.

‘If the Bill becomes law, it will deliver the power to deal with both cyber and image-based abuse of adults and promises unique safety options and avenues of reparation for victims.’

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