When Does An Online Threat Become An Offence?

The internet can sometimes be a nasty place with people making comments to others they would never make in person. However, there is a point where a bit of “trolling” or heated online communications turn into a crime.

Several Commonwealth and Western Australian criminal laws may be contravened when a person makes a threat to another online.

The following outlines key offences and their potential penalties, including terms of imprisonment.

Offences Related to Making A Threat

There are several offences under the WA Criminal Code related to making a threat, these include:

• Making a threat with intent to gain under section 338A of the Code, which carries a maximum penalty of 7 years imprisonment, except if circumstances of aggravation apply, in which case the maximum penalty is 10 years imprisonment.
• Making a threat to kill under section 338B(a) of the Code, which carries a maximum penalty of 7 years imprisonment, except if circumstances of racial aggravation apply in which case the maximum penalty is 14 years imprisonment, or general circumstances of aggravation apply in which case the maximum penalty is 10 years imprisonment.
• Making any other threat under section 338B(b) of the Code, which carries a maximum penalty of 3 years imprisonment, except if circumstances of racial aggravation apply in which case the maximum penalty is 6 years imprisonment, or general circumstances of aggravation apply in which case the maximum penalty is 5 years imprisonment.

Section 338 of the Code outlines the scope of behaviour that would constitute a ‘threat’ encompassing statements or behaviours that expressly constitute, or may reasonably be regarded as constituting, a threat to:

• kill, injure, endanger or harm any person, whether a particular person or not; or
• destroy, damage, endanger or harm any property, whether particular property or not; or
• take or exercise control of a building, structure or conveyance by force or violence; or
• cause a detriment of any kind to any person, whether a particular person or not; or
• distribute an intimate image of any person other than the distributor.

Circumstances of racial aggravation refer to circumstances in which:

• immediately before during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or
• the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

Circumstances of aggravation refer to circumstances in which:

• the offender is in a family relationship with the victim of the offence; or
• a child was present when the offence was committed; or
• the conduct of the offender in committing the offence constituted a breach of an order; or
• the victim is of or over the age of 60 years.

The Offence of Stalking

The offence of ‘stalking’ is outlined under section 338E of the Code, which applies when a person pursues another with intent to intimidate the person. This can include online as well as offline conduct.

To ‘intimidate’ someone means to:

• cause physical or mental harm;
• cause apprehension or fear;
• the prevent a person from doing an act they are lawfully entitled to do, or hinder the person in doing such an act;
• compel the person to do an act they are lawfully entitled to abstain from doing.

To ‘pursue’ someone means to:

• repeatedly communicate with a person, directly or directly, in words or otherwise;
• repeatedly follow the person;
• repeatedly cause the person to receive unsolicited items;
• to watch or beset the person’s home or workplace.

This offence of stalking carries a maximum penalty of 3 years imprisonment generally, and 8 years imprisonment if circumstances of aggravation apply.

Federal Carriage Service Offences

The Federal Criminal Code also has a number of criminal offences which apply throughout Australia, including relevant offences to misusing a ‘carriage service’ such as the internet.

Under section 474.15 of the Code, it is an offence to use a carriage service to make a threat. The maximum penalty for this offence is 10 years imprisonment if a person threatens to kill someone online and 7 years imprisonment for all other threats.

Under section 474.17 of the Code, it is an offence to use a carriage service to ‘menace, harass or cause offence’.  This offence carries a maximum penalty of 3 years imprisonment.

To “harass” is not defined in the Act. However, acts are deemed a “menace” if they are:

• A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
• A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat:

Things posted on the internet will be deemed “offensive” if they would be considered offensive to an ordinary person, with reference to:

• the standards of morality, decency and propriety generally accepted by reasonable adults; and
• the literary, artistic or educational merit (if any) of the material; and
• the general character of the material (including whether it is of a medical, legal or scientific character).

Need Legal Advice?

Andrew Williams is an experienced Criminal Defence Lawyer and Barrister who can provide you with expert legal advice for online threat offences in Western Australia.

Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and all across Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.