Criminal Law News & Current Affairs

By Kate Gunther


Should offensive online comments really be a crime?

Nearly all of us have an online presence whether that be Facebook, Twitter, Instagram, Snapchat, Pinterest, and in some cases, Grindr and Tinder.  We frequently communicate with each other, for various purposes, using those forums.

These popular social media platforms allow us to share anything and everything we are thinking or doing. Whilst some may be annoyed by seeing ‘that friend’s’ hundredth post-workout pic or strictly-vegan brunch snap, the instantaneous nature of social media presents us with bigger problems.

For some, a social media platform is the ‘toilet wall’ of their thoughts and should be kept to themselves. For many their instantaneous musings on social media do not get the usual or appropriate ‘filter’ before being posted – least of all proper consideration of the consequences.

The lack of real-life interaction gives the misconception that our conduct online does not carry consequences worth worrying about or that our comments don’t offend or outrage others. However, using a carriage service to menace, harass or cause offence is an offence punishable by 3 years imprisonment.[1]  It is also an offence that is gaining more prominence when dealing with online trolls and provocateurs.

No matter how cool and collected you may be in person, a confrontation online is difficult to walk away from. The temptation of the keyboard and the physical distance from our adversary sometimes leads us to act rashly or say something stupid, outrageous or highly offensive.

Whilst it may be reasonable to mitigate offensive behaviour, a difficulty lies in determining what behaviour is so offensive so as to warrant criminal punishment. For behaviour to be offensive the law says it must be “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”[2] But remember, the reasonable person must not be thin-skinned.[3]

Yes, these legal principles are from the 1950’s and 1960’s, but has our tolerance for the offensive changed or just the way we communicate our offensiveness?

It may surprise some that the test for this offence is an objective one.  It doesn’t matter whether someone actually offended or not and the fact that no one was offended is not a defence to the charge.

You may have read about a recent Sydney case in which a 25 year-old man pleaded guilty to using a carriage service to cause offence after making certain comments online.[4] This case is described in a news article as a “landmark case against gendered abuse online”. Whilst it is desirable to counter gendered abuse, we in the criminal defence sector are concerned this case will serve as a precedent for the criminalisation of a much broader array of conduct.

There have been other recent examples of similar conduct, including the Jedi Council matter and racist online commentary about the resignation of Senator Nova Peris.

Whether these comments are actually offensive is not the point.  The fact is this sort of commentary is rife across the internet.  Who gets to pick and choose which keyboard warriors get prosecuted and which do not?  Obviously that will come down to police officers.  Will the fact that you know a police officer or you are a persistent and vocal complainer make a difference?   Surely our already stretched police resources are better focused in more pressing areas of law enforcement.

[1] Criminal Code (Cth) s 474.17

[2] Worcester v Smith [1951] VLR 316 at 318.

[3] Re Marland [1963] 1 DCR 224.