Hands typing with cyberbullying messages appearing.

What Counts as Online Harassment? Social Media Offences in NSW

BySydney Criminal Lawyers

You’re scrolling through Instagram, Facebook, or TikTok. A message arrives…. it’s threatening, persistent, or humiliating. Or perhaps you’ve been accused of sending something similar. In New South Wales, online harassment isn’t just rude or inappropriate, it can be a criminal offence.

At National Criminal Lawyers®, we regularly defend clients charged with offences stemming from digital communications. From heated DMs to revenge posts, many people don’t realise that what they say or share online can lead to serious charges.

This blog explains exactly what counts as online harassment under NSW and Commonwealth law, what legislation applies, what courts consider, and how social media behaviour can overlap with other serious criminal offences like stalking, intimidation, and using a carriage service to menace or harass.

What Is “Online Harassment” in Legal Terms?

While “online harassment” isn’t defined as a standalone term in NSW criminal law, a wide range of existing offences can cover behaviour that takes place via social media, email, or messaging apps.

Depending on the conduct, a person may be charged under:

Let’s break down the key applicable offences.

1. Use of a Carriage Service to Menace, Harass or Offend (Federal Offence)

Under section 474.17(1) of the Criminal Code Act 1995 (Cth):

“A person is guilty of an offence if the person: (a) uses a carriage service; and (b) does so in a way (whether by the method of use or the content of a communication, or both) that a reasonable person would regard as being, in all the circumstances, menacing, harassing or offensive.”

Maximum penalty: 3 years’ imprisonment.

A “carriage service” includes:

  • Internet services (social media platforms, websites)
  • Mobile phones (text messages, apps)
  • Email

The test is objective: whether a reasonable person would find the conduct menacing, harassing, or offensive.

Example: In R v Arkle [2022] NSWDC 523, a man was convicted after sending threatening voicemails implying violence. Despite his claim it was a joke, the court found the tone and content were clearly menacing.

2. Stalking and Intimidation (NSW Offence)

Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW):

“A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.”

Maximum penalty: 5 years’ imprisonment and/or 50 penalty units.

The law defines “intimidation” to include:

  • Conduct amounting to harassment or molestation;
  • Approaches made by phone, text, email, or other technology;
  • Any conduct that causes a reasonable person to fear harm.

“Stalking” includes:

  • Repeated following or watching of a person (online or offline);
  • Monitoring someone’s digital activity (e.g. fake profiles, screenshotting posts, obsessively commenting or reacting).

Overlap: A single set of online messages could be charged as both intimidation under NSW law and harassment under Commonwealth law.

3. Image-Based Abuse (“Revenge Porn” Laws)

Under Part 3, Division 15C of the Crimes Act 1900 (NSW), image-based abuse is criminalised. For example:

Section 91P(1):

“A person who intentionally records an intimate image of another person: (a) without the consent of the person, and (b) knowing the person did not consent to the recording or being reckless as to whether the person consented, is guilty of an offence.”

Section 91Q(1) – Distribution of intimate image without consent:

“A person who intentionally distributes an intimate image of another person: (a) without the consent of the person, and (b) knowing the person did not consent to the distribution or being reckless as to whether the person consented, is guilty of an offence.”

Maximum penalty: 3 years’ imprisonment.

These laws apply to sharing nudes, private videos, or deepfakes, even if you didn’t take the image yourself.

4. Defamation and Cyberbullying

While defamation is usually a civil matter, severe and repeated attacks, especially if they damage reputation, instill fear, or incite others to harass, may amount to criminal conduct.

There are also proposed reforms (see eSafety Commissioner 2023 report) calling for criminalisation of serious cyberbullying.

How Online Harassment Overlaps With Other Offences

What starts as “just messages” can rapidly become:

  • Breach of AVO, if contact is prohibited
  • Terroristic threat, if threats suggest mass violence or targeted hate
  • Incitement to suicide, under s 31C of the Crimes Act 1900 (NSW), if messages urge someone to self-harm
  • Unlawful surveillance, if monitoring involves secret recordings or location tracking

Even deleted messages can be recovered and presented in court. Screenshots, metadata, and device forensics are common in digital evidence.

What Are the Defences?

Some possible legal defences to online harassment charges include:

  • No use of a carriage service (someone else used your account or phone)
  • No intent to menace/harass (but remember: intent isn’t required under federal law — it’s about how a reasonable person would interpret it)
  • Reasonable excuse or lawful purpose (e.g. warning someone of danger)
  • Constitutional free communication (rarely succeeds unless political in nature)

FAQs

Is swearing online a crime?

Not unless it amounts to harassment, threats, or is offensive by legal standards.

Can someone be charged for a TikTok comment?

Yes, especially if it’s threatening, repeated, or highly offensive.

What if the messages were private or anonymous?

Even private DMs can be criminal. Police can trace IPs and phone records. Anonymity is not a defence.

Can a teenager be charged?

Yes. Youths aged 10+ can be charged. Juvenile justice principles apply but the offence remains criminal.

Final Thoughts: Think Before You Post

Online communication feels casual, but legally, it can have very real criminal consequences. A message sent in anger can quickly escalate into a federal offence or an AVO breach.

At National Criminal Lawyers®, we:

  • Defend clients charged with online harassment and digital abuse
  • Challenge unfair carriage service prosecutions
  • Appear in Local, District and Federal Circuit Courts across Sydney, Parramatta, Blacktown, Wollongong, Penrith and Mt Druitt

📞 Call 1800 CRIM LAW today to speak to a trusted online harassment lawyer Sydney or social media criminal charge lawyer near me.

We fight harder, because one message shouldn’t define your future.

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