Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Legal and Constitutional Affairs References Committee
07/03/2018
Adequacy of existing cyberbullying laws

NATT, Ms Karina, Director, Corporate and Government Affairs, Carly Ryan Foundation

RYAN, Ms Sonya, Chief Executive Officer and Founder, Carly Ryan Foundation

[10:31]

CHAIR: Ms Ryan, you're becoming something of an expert at Senate committee hearings now. I'd like to welcome both of you here this morning. I'd like to invite you to make an opening statement.

Ms Ryan : For those of you who are not familiar with the work of the Carly Ryan Foundation, my daughter was groomed online by an internet predator who operated over 200 fake profiles to lure young people online. He lured her to her death in February 2007. Through the trial and investigation I suddenly realised that criminals have made that migration from the offline space to the online space, and they are using this faceless medium to take advantage of the kindness, good nature and loving nature of young people to try and infiltrate their lives. Therefore, I incorporated the foundation to create what, back in 2007, didn't really exist: education, empowerment and equipping the community to deal with all manner of online safety, including cyberbullying prevention and support.

I think our strength lies in the capacity to be able to connect with the community. We are on the ground in schools. We are supporting schools, parents and youth in this space. We receive multiple disclosures with regard to cyberbullying often, and, therefore, that is why we provided our submission to you to refer to today.

I don't want to talk for too long, because I want to give you the opportunity to ask questions. But I think it's important to note that I'm on the CWG with eSafety Commissioner Julie Inman Grant advising the federal government on cybersafety issues. I'm also part of the new eSafety and Mental Health Steering Group providing consistent messaging, incident response and rapid access to best practice with regard to government media and relevant individuals and providing evidence based guidance.

CHAIR: Thank you very much, Ms Ryan, that's very helpful. What conversations have you had with law enforcement and, indeed, with social media companies about how they manage fake profiles—you were here listening to the last witnesses—and the extent to which those identities are being adequately managed? Clearly, some people use and enjoy fake profiles for entirely harmless purposes, and other people that they're engaging with may or may not be aware of the extent to which those profiles are fake, but also, clearly, people also use them with intent to cause harm.

Ms Ryan : Of course, through our body of work, we're often dealing with those fake profiles that intend to harm. Through our work with police, it can be sometimes quite difficult to trace and track the trail of somebody who has created a fake identity or fake profile online, and often, of course, it's borderless and can trail overseas as well. We often deal with school based police officers, so I'd like to share some of the things that we've spoken to them about with regard to cyberbullying complaints.

Going back to fake profiles, it can be incredibly difficult to trace and find that trail and IP address to find out where that person's actually located, and then, of course, we have the different legislation in different states, which can be really make the issue complex as well. And the internet is faceless and it's really quite easy to create multiple profiles and pretend to be multiple different people, as in my own personal case that I experienced firsthand with Carly.

CHAIR: You highlighted the impact of different legislation in different states. Whilst we might think it's a good thing for different states to have strong laws, what has your experience been of trying to work between jurisdictions?

Ms Ryan : It's actually quite difficult. I really think that we need Commonwealth law with regard to cyberbullying because it crosses borders, to create some kind of intervention order, as we've spoken about in our submission. Basically, maybe we could have a national scheme and, potentially, the Office of the eSafety Commissioner could be involved in issuing orders or involved in that process. An issue we're seeing with police is that they are terribly under-resourced and sometimes quite ill equipped to deal with cyberbullying matters. Again and again, we have community members and families coming to our organisation saying, 'We've gone into the police station and we've been told to get off the internet. How are we going to move forward here?' Often the police don't have the ability to support the family or the school adequately, and it's just down to lack of resources and lack of education.

Another issue, and a real gap, we're seeing is parents' inability to know how to handle serious cyberbullying and lack of practical guidance for parents. There is a real gap with regard to information for schools. Many different schools are approaching our organisation saying, 'We've had this incident. What's the best practice thus far?' So we're providing them with a disclosure document on how to handle different cases depending on what it might be. So we're seeing a few gaps.

But this, of course, again, is a society issue—bullying, offline and online, is a multigenerational, complex, multilayered issue. I think it's really important to try and give young people the opportunity to do the right thing before necessarily criminalising them, and that comes back to option 1 in our submission, with regard to potentially having something like an intervention order which gives them a certain amount of time for no contact, and, if it's really grievous, awful bullying that does not stop, then potentially a criminal charge could be laid. I won't go through the submission, because you've got it there to read through. But, as part of that, I think it's really important to wind back a little bit and come back to what's driving these behaviours. Education, of course, is such a huge part. The Carly Ryan Foundation is doing emotional intelligence workshops. We feel that if potentially somebody is given an order then they would have to potentially attend mandatory emotional intelligence workshops to try and change the direction of their choice—so, instead of feeling powerful by bullying somebody else, finding different ways to feel powerful through empowerment or maybe inspiring people instead. Through our work in schools, with young people, this has been really quite effective, so I'm wondering if that could be something that could be given to schools in some kind of a program that they would be able to issue.

CHAIR: Clearly the profile of your organisation is reasonably high. How responsive are Facebook and Twitter to the issues that you raise with them, in terms of going as far as you would like them to in addressing these issues?

Ms Ryan : When it comes to takedowns of harmful material they're quite quick now, especially through, of course, the Office of the eSafety Commissioner. With regard to other areas, I think that more could be done—more responsibility taken by the social media services. Again, maybe you do need to have identifying markers to have a social media account. Just as we have a Medicare card and we have other identifying things on licenses, is there a way that you would have to have a certain amount of points of identification to have a social media account? Now, of course, how viable is this and how would it work? But, just as in real life we're responsible when we're driving a car or we are conducting ourselves with members of the public and there are consequences to our actions offline, I really do think that there needs to be a consequence for this terrible online behaviour. We need to give children education—and parents. I think anybody here can relate to going onto Facebook, looking at Facebook stories and seeing all the thoughtless, mean, terrible, bullying comments that are left by parents, and my kids are watching that behaviour. This is a really complex, multilayered issue.

CHAIR: A good example might be that, while Twitter verifies people's accounts, the vast majority of account holders' accounts aren't verified. It would be good if there were a process to accelerate that, and that people could block their accounts or that they could only correspond with verified users, for example.

Ms Ryan : Yes.

Senator IAN MACDONALD: Thanks very much, Ms Ryan, for coming and for all your work in this field. You would appreciate that it's really as a result of your work that the government has changed the law and introduced a number of initiatives. You said you work with the Office of the eSafety Commissioner?

Ms Ryan : Yes.

Senator IAN MACDONALD: Some comments have been made to the committee that the commissioner's underresourced and just simply can't deal with all the problems that come to them. Is that how you—

Ms Ryan : There already have been about 700 takedowns of harmful material in the last year, so I think that there is scope to do a lot more through the Office of the eSafety Commissioner.

Senator IAN MACDONALD: But it needs to be better resourced. Is that what you're saying?

Ms Ryan : Potentially—but also police resourcing. I really see a gap in resources for police. That's something that I'd like to put on the record. I can't say exactly what the workings are within the e-safety office and where the gaps are. That would be a conversation to have with Julie Inman Grant. But certainly I think more could be done through the office and I think there's opportunity here for there to be further support for that office.

Senator IAN MACDONALD: Time's short, so I just want to concentrate on one particular issue—your option 3. You've listed, at some length, the provisions of a Criminal Code. I think it happens to be the Queensland one—

Ms Ryan : We just used that as a reference.

Senator IAN MACDONALD: but it's the same in most states. You're saying there is sufficient power there for stalking, but there needs to be a specific offence created for cyberbullying. Is that what you're saying?

Ms Ryan : Yes.

Senator IAN MACDONALD: Adopting a lot of those Criminal Code provisions, but having an overarching cyberbullying offence?

Ms Ryan : Yes. Also, I think it's important to realise that a lot of the time, when we're dealing with serious cyberbullying, we're also dealing with bullying offline as well. There's a combination of the two: there's bullying in real life and cyberbullying. That's why we thought we would use the stalking legislation as an example. I really do think that we need to identify it very clearly as cyberbullying. Again, there needs to be a consequence for those really damaging, horrendous acts of cyberbullying when somebody has been flagged or somebody has potentially been given an intervention order to cease their inappropriate behaviour and they haven't complied and they continue to relentlessly damage a young person's life to the point where they feel that there is no way out. We've seen that time and time again. We've had two terribly tragic circumstances in the media, but we know through our work with schools and in different states that there are so many more children who have taken their lives who we don't hear about. I really think it this is an absolute priority to get something across the line.

Senator IAN MACDONALD: Are you saying that all those provisions in the Criminal Code could be used now, but they're difficult to apply to—

Ms Ryan : cyberbullying. Yes.

Senator IAN MACDONALD: They could be used, but it's a tortuous path to get there without specific—

Ms Natt : I think it's also whether even the wording of those provisions actually fit the type of crime as its presenting and whether people associate their offending with the laws that exist that could capture that type of behaviour. Obviously there is provision in the Commonwealth Criminal Code to capture causing offence and harassing and that sort of thing. Whether people associate that with cyberbullying and whether that should be applied to young people is obviously the question. But there's also the third option for Sonya. The foundation is trying to get some intervention before it gets to that point. That's probably worth noting as well.

Senator STEELE-JOHN: I'd like to take you to an education program that we were talked through last time we had these hearings—the eSmart program. Does the foundation have a view on that program and how beneficial it would be to have that rolled out nationally?

Ms Ryan : Anything that's going to benefit the community to help parents, families and teachers deal with this national issue is going to be a good thing. At the foundation we offer our own program, which is our emotional intelligence workshops. This has also proved to be really successful, so I think it may be looking, state by state, at who is best placed to roll out a program—and collaborating as organisations and coming together with some potential answers for the community. What works for one community may not work for another, so I think there needs to be a multilayered approach. It would be very beneficial for organisations like ours to come together and benefit the community.

Senator STEELE-JOHN: Fantastic. Strictly in relation to cyberbullying as it relates to children, we heard evidence that it is very difficult to deal with this space from a criminal or civil perspective, because you are likely to be victim, perpetrator and bystander simultaneously, so the emphasis really needs to be on education. But we've heard that the approach we take to education in this area can sometimes be focused exclusively on children when education is equally needed for teachers, for parents—whole-community education—that has buy-in from young people in its development. Would that be a view that you would agree with?

Ms Ryan : I would agree with that. I think young people need to be involved in the solution as well, because let's face it: we're from a generation that wasn't brought up with this technology. We didn't communicate in this way, a lot of us being a little older—maybe not so much you, Senator! I think parents need education from young people, which would be really beneficial. I think, as I said, it needs a multilayered approach because this is a society issue and it is multigenerational, and everyone needs some kind of—

Senator STEELE-JOHN: And, in fact, it's not. What we seem to have heard so far is that in some ways it isn't new; it's just the transference of—

Ms Ryan : Offline to online.

Senator STEELE-JOHN: Offline to online, which is what was expressed earlier. We had Maurice Blackburn start us off this morning, and they gave the view that you would need a regulator in place but that, regardless of how well you resourced that regulator, you would need a duty of care on the part of social media providers, because of the depth and breadth of cyberspace, meaning that it would be almost impossible for one single regulator to perform that takedown function for the entirety of society. You raise a point that 700 takedowns have been executed by the eSafety Commission, but that's out of how many million users online?

Ms Ryan : Yes.

Senator STEELE-JOHN: Would you agree that there should be a duty of care on the part of platforms?

Ms Ryan : I think there should be. With 400 hours of content uploaded on YouTube every minute, for instance, I know that Google will often say in meetings, 'Just as quickly as something inappropriate comes up on our space, we sometimes can't keep up with the takedowns,' and they're doing the best they can. I recognise that, but I think potentially there has to be another way of being able to do it, whether it's AI technology or whatever it might be. There must be a way for these large social media service providers to be doing more in this area to make people accountable.

Senator STEELE-JOHN: We'll find a way.

Ms Ryan : Yes—make people accountable for their behaviour online. This is, I think, what the whole issue is from the offline space to the online space: people, for whatever reason, feel that they can get online and be anonymous or not respect other people's opinions, which sometimes are going to be different to your own. That's just a normal part of life. For some reason, they feel that it's appropriate to respond in such an unthoughtful manner with, as we've heard today, absolutely disgusting and completely inappropriate contact. Would you walk up to a person in the street and talk to them like that? Not often.

Senator STEELE-JOHN: This brings me to my final question, because we're up against the clock a bit. We've heard a lot about the need for law enforcement training and, more broadly, employer training as well in regard to their obligations and the legal framework offered under section 474.17 of the Criminal Code. Have you worked much with individuals in New South Wales? What's been brought to our attention is that the New South Wales Police Force have actually integrated a program into their systems to train their officers specifically in dealing with cyberbullying areas, and the response has been a lot better. Has that been your experience?

Ms Ryan : I have seen a huge improvement with regard to the way that police have conversations with community members that come into stations to make a complaint. Absolutely there has been an improvement. From my perspective, having worked with police in every state—including Task Force Argos, and Strike Force Trawler in New South Wales—through the work that we do with regard to preventing harm online, I see that this is a resource issue, and it has been for quite some time, not just with regard to bullying complaints but with regard to a lot of complaints with regard to the online space.

Senator STEELE-JOHN: Thank you very much.

Senator PATRICK: Thank you, firstly, for coming down from the great state of South Australia to appear here in Melbourne. That's appreciated.

Senator STEELE-JOHN: It's almost like an election's going on there!

Senator PATRICK: I'm just commenting that it's a great state! I've just looked at the couple of the options that you're presenting. How do you see option 1 differing from the state laws that allow for intervention orders?

Ms Ryan : Again, I'm looking at the big picture and hoping for Commonwealth legislation, so that it's not crossing over borders and different in each state, simply because the internet is borderless. I think it could become very complex if you have someone offending in one state and then the victim is in another state. How on earth are we—

Senator STEELE-JOHN: My understanding is there are differing definitions as well. There isn't a nationally consistent definition of cyberbullying.

Senator PATRICK: Maybe this question needs to be asked: how effective have those intervention orders been in South Australia, as a template for what we might do nationally?

Ms Natt : The South Australian government, obviously, made their submission talking about the ability to use intervention orders for cyberbullying. That wasn't something that the foundation was aware of at the time they made their submission. So I think that probably indicates the level of their use in South Australia. If it is not known that it's an option and that it can be applied in this circumstance, it's probably not being used. Obviously, it's coincidental that Sonya has had this suggestion about an intervention order, mirroring a domestic violence scheme, because she just didn't know it was being used in South Australia. In terms of jurisdictional issues, we know that apprehended violence orders, or domestic violence orders, are different schemes nationally and they've only just started feeding that information into one database so that it can be traced across jurisdictions.

Senator PATRICK: Has your interaction with the eSafety Commissioner revealed any success with these laws, or are you saying that because you're not aware of it hasn't been used very much?

Ms Ryan : Pretty much. We made this submission back in September 2017, and back then we were discussing different options with school based police officers and we were sitting down as an organisation with our board and coming with some potential workable ideas and practical solutions to deal with this insidious issue. I was not aware of the intervention orders in SA. Certainly, given the amount of media coverage we've had about our submission, and various contacts, I would have thought we would have had some kind of media attention, or something around that, if an intervention order had been successfully used in SA.

Senator PATRICK: Obviously, that's probably targeted at adults. Your call at option 2 is perhaps more suitable for children where it would be a like a ticketing arrangement. You talk about banning from social media; in some sense that's like cyber-grounding. I was grounded; occasionally that happened. Are you suggesting there's a case for a grounding mechanism, and perhaps, asking the same question of the previous witnesses: is there a case for taking people off the internet altogether, noting that it is a utility now?

Ms Ryan : I'm suggesting taking them off social media or the sites they're using to harass, humiliate and harm others. If I drive a car down the street and I drink and drive I'm taken out of that vehicle, and I'm not able to drive it again. So why can't we issue a traffic ticket like system with seven days, 14 days or three months—however long it is—and a no-contact period so that nominated person or known persons are banned from social media and must not attend a location where they live. Of course at school it would be monitored and flagged with teachers so they could keep students separate, or whatever.

CHAIR: We certainly have move-on notices for people who display antisocial behaviour in a physical environment.

Ms Ryan : So why can't we move that to the online space? That's where I think there has to be a way that social media sites like Facebook, Twitter, Instagram and all of our top service providers can come with a way to take down a person's ability to harass another person online.

Senator PATRICK: This is a way of directing remedies at the perpetrator, rather than asking the victim to not go online, so that's a much better option, isn't it?

Ms Ryan : It's something else they lose. They're constantly being humiliated and harassed.

Senator PATRICK: I would imagine kids would be devastated by being cyber-grounded.

Ms Ryan : Everyone has a right to get online and use it as it's intended to be used—to communicate with others and look for opportunities. I just think as an organisation we're looking at the risks and trying to find a practical solution to deal with those risks and to deal with that harm. What can we do as a nation to address this quickly and effectively? We are going to need to be able to do it without too many resources being used—something that's actually viable. I guess that's a reason we really broke down our options to figure out a way it could work and how it could be implemented, potentially, on a Commonwealth level.

Senator PATRICK: Thank you for those options and thank you for persisting in this domain. It's really, really helpful.

Senator IAN MACDONALD: You may take this on notice, but you mentioned intervention orders. Could you have a look at section 42 of the Enhancing Online Safety for Children Act, which has an end-user notice. Does that do the same sort of job as the intervention orders you're talking about?

Ms Ryan : We'll take that on notice. Thank you.

Senator IAN MACDONALD: I appreciate that. Thanks very much.

CHAIR: Thank you both for your evidence this morning and for your ongoing advocacy in this space.

Proceedings suspended from 11 : 00 to 11 : 14