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Psychiatry, Psychology and Law
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Cyberbullying: The Shades of Harm
Colette Langos
a
a
University of South Australia – School of Law, Adelaide, Australia
Published online: 26 Jun 2014.
To cite this article: Colette Langos (2014): Cyberbullying: The Shades of Harm, Psychiatry,
Psychology and Law, DOI: 10.1080/13218719.2014.919643
To link to this article: http://dx.doi.org/10.1080/13218719.2014.919643
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Cyberbullying: The Shades of Harm
Colette Langos
University of South Australia School of Law, Adelaide, Australia
Empirical studies undertaken to date report that exposure to cyberbullying can have
potentially serious consequences. This paper assesses the potential harm associated with the
various specific manifestations (forms) of cyberbullying based on initial empirical research
and a crime seriousness framework originally applied to traditional crimes. The analysis
provides valuable theoretical insight into the associated harms of each of the forms of
cyberbullying. This is significant in light of the infancy of the research in this area. The
research demonstrates that the various manifestations are indeed associated with different
levels of harm. It concludes that, based on a principle of harm, not all forms warrant
criminalization.
Key words: computer crime; criminal law; cyberbullying; online harm.
Cyberbullying is a potentially devastating by-
product of the digital age. Research informs
us that this phenomenon is difficult to define,
can affect both children and adults alike and
is occurring at a rate most would agree is
unacceptable. Various specific manifestations
(forms) of the conduct have been identifi ed in
the literature, each possessing particular char-
acteristics. At pres ent, there is no specific
cyberbullying offence governing the conduct
in an inclusive manner in any Australian
jurisdiction. As awareness regarding the inci-
dence and negative implications of cyberbul-
lying emerges, community concern
surrounding the regulation of cyberbullying
is intensifying. In order to avoid over-crimi-
nalizing conduct, policy-makers need to be
informed about which manifestations of
cyberbullying warrant criminalization on
account of the harmfulness associated with
that particular form.
This article provides a brief account of
American philosopher Joel Feinberg’s “harm
principle” as a justification for criminalizing
wrongful conduc t. It then adapts the principle
to the cyberbullying cont ext. This research
enquires whether there are some manifesta-
tions of cyberbullying that are inherently
more harmful, and thus more serious, than
others, and may warrant criminalization.
Forms of cyberbullying that generally inflict
negligible or trivial harm to those exposed
are less likely to warrant criminalization if to
do so would open the law to ridicule.
This article posits the view that the vari-
ous forms of cyberbullying can be ranked
according to the gravity of potential harm
each forms poses. This view is based on:
recent perception-based cyberbullying
research examining the seriousness and
perceived “harmfulness” of various
Correspondence: Colette Langos, University of South Australia School of Law, GPO Box 2471, Ade-
laide, South Australia 5001, Australia. Tel.: +61 (0)8 8302 7435; Fax: +61 (0)8 8302 7128; Email: colette.
langos@unisa.edu.au
Ó 2014 The Australian and New Zealand Association of Psychiatry, Psychology and Law
Psychiatry, Psychology and Law, 2014
http://dx.doi.org/10.1080/13218719.2014.919643
Downloaded by [University Of South Australia Library], [Colette Langos] at 18:00 30 June 2014
modes of cyberbullying as compared to
traditional bullying;
a pioneering Italian study evaluating
the severity of impact between various
modes of cyberbullying; and
an assessment centred on a “crime seri-
ousness” framework developed by von
Hirsch and Jareborg (1991) adapted to
a cyberbullying context.
Ultimately, this article provides insight into
the shades of harm associated with the vari-
ous forms of cyberbullying and postulates
that, based on a principle of harm to others,
not all forms of cyberbullying should be
criminalized.
The Various Manifestations
of Cyberbullying
Cyberbullying has proven difficult to define.
To date, a universal definition has not been
agreed upon. The general consensus among
scholars is that cyberbullying can be defined
as intentional and aggressive online conduct
intended to harm another who cannot easily
defend him or herself (Langos, 2012). The
phenomenon encompasses an immensely
broad range of behaviours. The various mani-
festations can be categorized into eight main
forms:
Harassment involves repeatedly send-
ing offensive messages to a target
(Willard, 2007).
Cyberstalking involves intense harass-
ment and denigration that includes
threats or creates significant fear in the
victim. Harassment becomes cyber -
stalking when a victim fears for their
personal safety (Willard, 2007).
Denigration may involve making a
derogatory comment about the target.
There are several manif estations of this
conduct. It can occur using words or
can involve the dissemination of a
derogatory, sexual or non-sexual image
(Langos, 2013; Willard, 2007).
Happy slapping involves the filming of
a physical assault on a victims and the
subsequent distribution of the film to
humiliate the victim publically (Chan
et al., 2012).
Exclusion involves a victim not being
allowed to enter online “areas” such as
a particular chatroom or discussion
group by being purpos ely excluded by
members of those online domains
(Willard, 2007).
Outing and trickery are tactics applied
together. They involve a situation in
which a perpetrator manipulates the
victims into disclosing information
that the perpetrator then publicizes in
order to humiliate the victim (Willard,
2007).
Impersonation or masquerading
involves the perpetrator pretending to
be the victim and sending an offensive
message that appears to com e from the
victim (Willard, 2007).
Indirect threat is a form of cyberbully-
ing that relates to cyberstalking in that
it refers to an online communication of
impending physical harm. Unlike
cyberstalking, this form relates to a sin-
gle threat of physical harm made indi-
rectly in the public online domain
(Langos, 2013).
The lack of a uniform definition of cyberbul-
lying and standardized measurement
techniques makes it difficult to determine
accurately the rate at which cyberbullying is
occurring. A 2009 study conducted by
the Australian Communication and Media
Authority (ACMA) reported that an average
of 11% of young people aged between 8 and
17 years had experienced cyberbullying at
some time (ACMA, 2009). The stud y also
revealed that victimization from cyberbully-
ing increased with age. By the age of 16 to
17 years, nearly one in five youths (19%)
reported having experienced cyberbullying
(ACMA, 2009). Although most cyberbullying
research conducted to date has examined
2 C. Langos
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cyberbullying between youths, recent studies
examining cyberbullying between adults indi-
cate that it transcends the “youth only” con-
text (Phippen, 2011; Privitera & Campbell,
2009).
The “Harm Principle”
A review of the scholarship examining moral
justifications for invoking the criminal law
illuminates how complex the decision to
criminalize particular conduct is. It involves
value judgements and is influenced by the
political and social structure of a State (Ash-
worth, 2006; Simester & Gordon, 2007).
From a liberal perspective, there must be suf-
ficient reason to warrant criminalization,
given that the criminal law is a State’s most
coercive form of power over an individual. A
brief overview of the “harm principle”, which
lies at the heart of liberalism, is offered as a
primary justification for a State’s use of the
criminal law as a tool for regulating antisocial
conduct.
1
The harm principle is a liberty-limiting
principle. A sophisticated exposition of the
principle was offered by American philoso-
pher Joel Feinberg in Harm to Others (1984),
as part of his four-volum e work The
Moral Limits of the Criminal Law. Feinberg
extended the principle first advanced by John
Stuart Mill a century earlier. Mill postulated
that the State is only justifi ed in regulating
conduct when that conduct causes harm to
others: “the only purpose for which power
can be rightfully exercised over any member
of a civil ized community, against his will, is
to prevent harm to others’ (Mill, 1909, p. 22).
Both Mill and Feinberg consider the legiti-
macy of exercises of power. However, Fein-
berg restricts his concern to the legitimacy of
State power by means of the criminal law
(Feinberg, 1984, p. 3). While Mill posits a
State is only justified in exercising power
over the community so as to prevent harm to
others, Feinberg concedes that there are
diverse liberty-limiting principles proposed
by various philosophers, and acknowledges
that more than one (and even all of them)
could have relevance (Feinberg, 1984,
pp. 910). Feinberg formulates his interpre-
tation of the harm principle as follows:
it is always a good reason in support of
penal legislation that it would probably be
effective in preventing (eliminating or
reducing) harm to persons other than the
actor (the one prohibited from acting) and
there is probably no other means that is
equally effective at no greater cost to other
values (p. 26).
The principle appears to consist of two con-
juncts. The first specifies that there is a posi-
tive reason for criminalization where creating
a criminal offence would prevent harm to
others. The second cautions against the crea-
tion of such a criminal offence if alternative
means (non-criminal) are equally effective.
In this manner, the principle implies that the
criminal law should be used only as “a last
resort”, given that the criminal law is a
State’s most coercive form of power over an
individual. A basic interpretation of the “last
resort” principle is offered by Douglas
Husak: “if non-criminal alternatives are pref-
erable to the criminal law in attaining [the]
objective [of the particular legislation], the
former should be employed” (2004, p. 216).
However, Feinberg pays little attention to this
second aspect of his harm principle within
the four volumes of The Moral Limits of the
Criminal Law. The emphasis of his discus-
sion is largely confined to exposing the man-
ner in which “harm” legitimizes the creation
of criminal legislation, which relates to the
first conjunct. As Husak comments, “many
possible criminal offences are disqualified
because they fail to prevent harm, but few are
ruled out because they do not satisfy the last
resort conjunct of the harm principle” (2004,
p. 214).
The primary emphasis of the discussion in
this article focuses on the core of Feinberg’s
harm principle there is a justification for
criminalization where the creation of a crimi-
nal offence would prevent harm to others.
Cyberbullying 3
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“Harm” in relation to cyberbullying
includes emotional harm which includes anxi-
ety, distress, fear, grief, anger or humiliation,
and extends to more severe harm in the form
of protracted psychological injury and long-
term psychiatric harm (Langos, 2013).
Feinberg’s appreciation of “harm” is more
complex. He conceives “harm” as “the thwart-
ing, setting back, or defeating of an interest”
(Feinberg, 1984, p. 33). Applying Feinberg’s
interpretation of “harm”, cyberbullying is
harmful where “its presence is sufficient to
impede an interest” (p. 47). A person’s inter-
ests are “distinguishable components of a per-
son’s well-being” (p. 34). It should be noted
that harm can be caused in relation to a viola-
tion of individual or collective interests. How-
ever, only individual harm, that is, harm
directed towards a particular individual, will
be considered in the cyberbullying context for
the purposes of this article.
2
A person’s indi-
vidual interests include interests such as his or
her privacy, freedom from humiliation and
physical integrity.
Feinberg draws a distinction between
“harm” and “other disliked” (but not harmful)
conditions. In this manner, Feinberg attempts
to limit the scope (creates a threshold) of the
kinds of conduct that may qualify as
“harmful” for the purposes of the harm prin-
ciple. For the purposes of this “test”, Feinberg
labels “other disliked” mental states as
“hurts” or “offenses” [sic] to encompas s the
many varieties of disliked, yet not harmful,
conditions an individual may experience.
3
Neither hurts, nor offences are, generally
speaking, conditions which are so acute so as
to impede an individual’s interests. Such
states of mind may be likened to fleeting
emotional conditions such as short-lived dis-
tress, anxiety, irritati on, wounded pride,
alarm, disgust, frustration, embarrassment,
feelings of guilt or shame, or momentary
annoyance (Feinberg, 1984). Feinberg
describes the range of unpleasant yet not
harmful states as experie nces that “come to
us, are suffered for a time, and then go, leav-
ing us whole and undamaged as we were
before” (Feinberg, 1984, p. 45). Such condi-
tions equate to trivial or negligible harm.
Applying Feinberg’s analysis, victims of
cyberbullying may not always have an indi-
vidual interest intruded upon, notwithstand-
ing the fact that they may experience
“emotional harm” (as understood in the
cyberbullying context) as a consequence of
being targeted by a perpetrator. For example,
a single nasty Facebook post directed at the
victim may not necessarily result in a setback
of the target’s interest to be free from humili-
ation. The infringement upon the interest may
be so minimal that it could not be described
as anything more than trivial, a momentary
intrusion not significant enough to be consid-
ered a “setback” of an interest. The momen-
tary states of anger and humiliation come and
go without having a lasting impact on a vic-
tim who is neither particularly vulnerable nor
especially “thick-skinned”. Although consid-
ered “harm” in a cyberbullying context, the
anger and humiliation experienced by the vic-
tim does not constitute “harm” in accordance
with Feinberg’s analysis. According to Fein-
berg, this resulting state of mind may be
more aptly described as a “hurt” (1984, p.
48). According to Feinberg’s harm principle,
a State is not justified in criminalizing “hurts”
because such resulting conditions are too triv-
ial to warrant State intervention by way of the
criminal law.
That said, a “hurt” or “offence” may be
sufficiently serious (of sufficient magnitude)
so as to qualify as “harm” itself (Feinberg,
1984, pp. 4850). In this manner, repeated
deprecatory Facebo ok posts directed at the
victim over time may, in fact, result in a set-
back of the victim’s interest to be free from
humiliation. The systematic conduct is likely
to result in more than a fleeting negative emo-
tional impairment given the ongoing victimi-
zation. Such conduct is lik ely to cause the
victim a degree of harm that extends beyond
trivial harm. The effects of the conduct are no
longer aptly referred to as a resulting “hurt”.
The distinction Feinberg draws between
“harm”, which impedes an individual’s
4 C. Langos
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interest, and “other unpleasant” states of
mind that do not, is useful when making an
assessment as to which forms of cyberbully-
ing warrant criminalization. Consistent with
Feinberg’s analysis, those forms of cyberbul-
lying that, generally speaking, cause a victim
to experience a disliked state of mind, rather
than “harm” per se, will fall outside the scope
of criminalization based on a principle of
harm.
According to Feinberg, limitations on
individual liberty are only legitimate where
those limitations prevent “wrongful” harming
(1984, pp. 105125). In this line of argu-
ment, engaging in cyberbullying is inherently
“wrongful”. A perpetrator (cyberbully)
clearly wrongs a victim by intending to harm
the victim. It is the intention to harm a victim
inherent in the act of cyberbullying that
marks the conduct as morally inexcusable
and morally wrong. Whether or not a victim
is actually harmed will depend on the severity
of the conduct: the inherently “wrongful”
conduct infringes upon a person’s quality of
well-being (individual interests) where the
resulting state experienced by the victim is
“harm” as opposed to “hurt.”
The fact that cyberbullying is a relative ly
new phenomenon means that there is limited
empirical research on the “harmfulness” of
the activity to inform policy. It is important
that policy-makers take into account the
extensive and persuasive empirical base link-
ing the closely related phenomenon of bully-
ing to consequent mental health impli cations.
Empirical findings obtained from both cross-
sectional and longitudinal studies suggest that
there are an array of negative health implica-
tions associated with bullying for the victi ms
of bullying, bullies (those who bully others;
the perpetrators) and bully6 victims (those
who both bully others and are victims of bul-
lying themselves) (Rigby, 2003). Early find-
ings demonstrate that cyberbullying is
associated with a range of negative implica-
tions such as high levels of anxiety (Juvonen
& Gross, 2008), suicidal ideation (Hinduja &
Patchin, 2010), depression (Wang, Nansel, &
Iannotti, 2011), psychosomatic problems
(Sourander et al., 2010), as well as behaviou-
ral problems, such as aggressive behaviours
and the excessive consumption of alcohol
(Sourander et al., 2010). Such consequences
are similar to those reflected in traditional
bullying research (Rigby, 2003).
There are many “shades of harm” associ-
ated with cyberbullying. Some victims may
experience negligible (Ybarra, Mitchell,
Wolak, & Finkelhor, 2006) or mere trivial
harm (equivalent to Feinberg’s expression of
“hurts”) and others may experience pro-
tracted psychological injury (Langos, 2013).
Given the infancy of cyberbullying research,
a State ought to act cautiously when consider-
ing intervening by way of the criminal law. A
State may be justified in criminalizing some
forms of cyberbullying and not others based
on the potential harmfu lness of the conduct.
What is uncontentious from initial findings is
that, at the very least, a degree of danger is
involved for individuals exposed to
cyberbullying.
As such, it is imperative to examine the
harmfulness of various manifestations of
cyberbullying (various forms of cyberbully-
ing or “modes” of cyberbullying)
4
so as to
avoid the criminalization of trivial instances
of cyberbullying (Feinbergian “hurts”) by
way of a “catch-all” criminal offence provi-
sion. Empirical research specifically examin-
ing the harmfulness of particular forms of
cyberbullying is extremely scant. The next
section considers the evidence based on
research findings evaluating the severity of
the impact of cyberbullying in comparison to
traditional bullying and recent research com-
paring the impact between various “modes”
of cyberbullying.
Research Evaluating the Harmfulness
of Various Modes of Cyberbullying
The various channels through which cyber-
bullying can be carried out will be referred to
as “modes” of cyberbullying. Forms of cyber-
bullying can occur in different modes. For
Cyberbullying 5
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example, “harassment” can occur using SMS
messaging, email, phone call, websites, chat-
rooms and instant messaging.
There have been numerous studies con-
ducted evaluating the severity of the impact
of cyberbullying (harmfulness of cyberbully-
ing) in comparison to traditional forms of bul-
lying. Findings from such studies illuminate
that not all forms of cyberbul lying, when
compared with traditional bullying, are per-
ceived as being equally harmful.
Smith et al. (2008) considered this issue
in two United Kingdom studies in relation to
secondary school students. Study One was
conducted in 2005, surveying 92 students
across 14 secondary schools. Fourteen stu-
dents contributed in follow-up focus groups.
Study Two was conducted in 2006, surveying
533 secondary students across five schools.
Both studies asked participants if they
thought cyberbullying has more, the same or
less impact on victims than traditional bul-
ling. Researchers distinguished between
seven modes of cyberbullying including SMS
text message , email, picture6 video clip,
phone call, instant messaging, website and
chatroom. All forms of cyberbullying are
potentially reflected by these modes: cyber-
bullying via SMS text messages, email
and phone call can reflect “harassment”,
“cyberstalking”, “masquerading or
“impersonation”, “denigration” using words;
picture6 video clip reflects “happy slapping”
and “denigration” by means of an image or
video recording (sexual6 intim ate and non-
sexual in nature); cyberbullying via instant
messaging, website and chatroom can reflect
“harassment”, “cyberstalking”, “denigration”,
“exclusion”, “indirect threat” and even poten-
tially “outing and trickery”, “masquerading
or impersonation”. The modes are not spe-
cific enough to be able to associate a specific
form of cyberbullying with a specific mode.
The studies do, however, provide an under-
standing as to which modes are perceived as
being the most harmful to victims.
Focus groups reported varied responses as
to the perceived impact different forms of
cyberbullying would have. Participants in
Study One considered cyberbullying via
phone calls and websites to have a higher
impact than traditional bullying. Participants
in Study Two considered cyber bullying via e-
mail to have a greater impact than traditional
bullying. It is crucial to note in both studies
that cyberbullying via picture6 video clip was
calculated as having the highe st impact factor
in comparison with traditional bullying. This
indicates that cyberbullying via picture6
video clip is perceived as being the most
harmful. This form of cyberbullying is per-
ceived as having a much more profound neg-
ative impact on a victim than traditional
bullying. The findings support the assertion
that there are some modes of cyberbullying
likely to be more harmful to victims than tra-
ditional bullying.
Research conducted in Sweden, sampling
360 students across four secondary schools,
similarly calculated an impact factor to display
the severity associated with various modes of
cyberbullying (text message, email, phone
call, picture6 video clip) in comparison with
traditional bullying (Slonje & Smith, 2008).
Some modes of cyberbullying, such as via a
phone call, were viewed as comparable with
traditional bullying. Modes via text mess ag i ng
and email were perceived as having a lesser
impact than traditional bullying. However, a
high impact factor was given to picture6 video
clip bully ing.
The study revealed the most common rea-
sons why students thought this category of
cyberbullying would be most harmful. Stu-
dents referred to “the large audience size if
the picture6 video clip was on the internet,
and the concreteness of the effect, i.e. actu-
ally seeing the picture6 video clip” (Slonje &
Smith, 2008, p. 153). The “fear of not know-
ing who had seen the picture6 clip” was also
reported as a factor. These responses reflect
aspects unique to indirect cyberbullying: the
use of information communication technolo-
gies (ICTs) which facilitate cyberbullying
enables a potential ly infinite audience to wit-
ness the conduct; the permanency of the
6 C. Langos
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communication(s) given the difficulty associ-
ated with removing material from all areas of
cyberspace; and the fear and distress created
by not knowing who has access or who will
gain access to the material in the future.
A recent study involving 70 adolesce nts
from Italy, Spain and Germany, reporte d that
all adolescents from all three countries deter-
mined that cyberbullying involving visual
behaviours, like photo6 video clip cyberbully-
ing, is the most serious category of cyberbul-
lying (Nocentiti et al., 2010). According to
participants, this mode of cyberbullying is
more serious than writtenverbal, exclusion
and impersonation cyberbullying behaviours.
The “voice” of students6 adolescents,
captured in the above studies, endorses the
view that picture6 video clip cyberbullying is
a form of indirect cyberbullying which is per-
ceived as being inherently harmful, having a
much greater potential impact on victims
than traditional forms of bullying.
A 2011 study sampling 1092 Italian ado-
lescents is the first reported study to evaluate
the severity of the impact between various
modes (ten modes) of cyberbullying as expe-
rienced by participants of the study
(Menesini, Nocentiti, & Calusii, 2011). The
various modes included in the study involved
nasty text messages, phone pictures6 pho-
tos6 video of violent scenes, phone pictures6
photos6 video of intimate scenes, silent6
prank phone calls, nasty or rude emails,
insults on websites, insults on instant messag-
ing, insults in chatrooms, insults on blogs,
and unpleasant pictures6 photos on websites.
The modes examined in the study are more
specific than in previous studies. A particular
mode can thus be more accurately associated
with a particular form of cyberbullying.
Nasty text messages, nasty or rude emails and
silent6 prank calls reflect “harassment”;
phone pictures6 photos6 video of violent
scenes reflect “happy slapping”; phone pic-
tures6 photos6 video of intimates scenes
reflect “denigration” by way of an image (of
a sexual nature); insults on websites, on
instant messaging, in chatrooms and on blogs
reflect “denigration” using words; and
unpleasant pictures6 photos on websites
reflect “denigration” by way of a derogatory
image (non-sexual6 not intimate).
5
The study
measured the impact that the various modes
of cyberbullying had on both males and
females and differentiated between conduct
that occurred “never, or only once or twice”
and conduct that occurred “two or three times
a months to always”. Findings indicate that
the most severe modes of cyberbullying for
both males and females are the visual modes:
unpleasant pictures6 photos on websites
(reflecting “denigration” by way of a deroga-
tory image (non-sexual6 not intimate), phone
pictures6 photos6 video of intimate scenes
(reflecting “denigration by way of a sexual
or intimate image, and phone pictures6 pho-
tos6 video of violent scenes reflecting “happy
slapping” and “denigration” by images6 vi-
deo recordings.) This confirms findings from
perception-based studies in which partici-
pants perceived that visual forms of cyberbul-
lying harm a victim most profoundly. The
less severe modes for both males and females
included silent6 prank calls and insults on
instant messaging. Again, this finding is in
line with previous noted studies. The impact
of cyberbullying on victims via nasty text
messages, nasty or rude emails, insults on
websites, insults in chat rooms, and insults on
blogs is moderate. It is important to note that
for every mode of cyberbullying, participants
reported the impact of the conduct to be sig-
nificantly greater where the conduct occurred
“two to three times a months to always”. This
indicates that systematic victimization inten-
sifies the negative impact experienced by the
victim. The duration of cyberbullying influ-
ences the degree to which the conduct
impacts the victim.
In sum, the findings from studies con-
ducted in the United Kingdom, Sweden,
Spain, Germany and Italy demonstrate that
participants perceive visual modes of cyber-
bullying as being the most serious and the
most harmful com pared with traditional bul-
lying. This perception is confirmed when
Cyberbullying 7
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comparing the impact between various modes
of cyberbullying as experienced by
participants.
Recent research conducted by Chan et al.
(2012) examining “happy slapping” reinfor-
ces that “the negative victim impact caused
by experiencing that assault, filming and
video distribution must not be underestimated
or ignored”. A victim’s loss of control as to
where the video will be disseminated to, and
if it will ever stop, remains even after the
attack, and indefinitely (Chan et al., 2012).
This research supports the studies identified
above, the authors concluding that the added
component of filming the assault and then
distributing the video involved in “happy
slapping” is likely to worsen the severity and
duration of the negative impact on the victim
(Chan et al., 2012). This inherently harmful
conduct is likely to infringe upon a victim’s
quality of life and intrude upon individual
interests in a serious manner.
The harm associated with the misuse and
dissemination of unauthorized photographs
on the internet was considered in a Discus-
sion Paper of the Standing Committee of
Attorneys-General in 2005 (SCAG, 2005).
6
The unauthorized publication of photographs
on the internet generated public attention and
concern fol lowing a series of instances in
which photographs of children had been
taken without consent and put to improper
use.
7
The Paper commented on the potential
harm caused to victims resulting from the
improper use of images. Reference was made
to various factors that amplify the harm
caused to individual s who fall victi m to an
unauthorized distribution of an image on the
internet. Factors included:
lack of consent (lack of control over one’s
own image in terms of both the taking of the
photograph and the use to which it is put;
the nature of the photograph themselves (for
example, objectification of the subject); the
context in which the photographs are dis-
played (sexually explicit, or themes of
objectification); the purpose of the photo-
graphs (other’s sexual gratification); the
permanency of recorded images (higher
level of scrutiny); and world-wide audience
(SCAG, 2005).
These factors are directly relevant in the con-
text of “happy slapping” or “denigration” by
means of a derogatory image: consent is an
issue for victims of “happy slapping,” in rela-
tion to the physical assault, the filming of the
assault and the use to which the recording of
the assault is put (e.g., distribution of the film
on the internet); the nature of the recording is
likely to be humiliating and degrading; the
context may, in some instances, be sexually
explicit; the purpose of the distribution of the
recording is likely to be humiliation of the
victim (depending on the nature of the act it
may potentially be for other’s sexual gratifi-
cation); once the images are recorded and dis-
tributed they can remain in cyberspace
indefinitely and be a permanent reminder to
the victim. Moreover, the recording has a
potential to reach a global audience.
8
The potential harm resulting from deni-
gration by means of an image of a sexual6
intimate nature (image showing the victim
engaging in a sexual act, nude image dissemi-
nated without the subject’s consent) was
referred to in a judgment by Deputy-Chief
Magistrate Jane Mottley in sentencin g a
20-year-old man in the NSW Local Court to
six months imprisonment for posting nude
pictures of his ex-girlfriend on Facebook:
The harm to the victim is not difficult to
contemplate: embarrassment, humiliation
and anxiety at not only the viewing of the
images by persons who are known to her
but also the prospect of viewing by those
who are not. It can only be a matter for spec-
ulation as to who else may have seen the
images, and whether those images have
been stored in such a manner which, at a
time the complainant least expects, they
will again be available for viewing, circula-
tion or distribution.
9
The technological platform facilitating
“happy slapping” or “denigration” by means
of a derogatory image exacerbates the harm
experienced by victims of such conduct. Not
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only is a victim harmed by the lack of control
over his or her own image and the use to
which it is put, and by the humiliating content
(which may be extremely disturbing given the
nature of “happy slapping” and “derogatory”
images), the permanency and global reach of
the technology significantly amplifies the
harm.
Initial research informs us that not all
modes of cyberbullying are equally harmful.
Given the infancy of empirical research into
this aspect of cyberbullying, it is useful to
apply a crime seriousness framework devised
by von Hirsch and Jareborg (1991) to the
cyberbullying context in order to assist in
making an assessment as to whether various
forms of cyberbullying can be ranked accord-
ing to the gravity of potential harm each form
poses. It is to this framework we now turn.
Harm and Crime Seriousness Assessing
the Gravity of Possible Harm
von Hirsch and Jareborg (1991) offer valu-
able insight into how victim-oriented criminal
harm may be gauged in relation to crime seri-
ousness based on the harmfulness of the con-
duct. The authors considered traditional
offences such as theft, burglary and assault in
which a victim is harmed. They offer a con-
ceptual framework to assess the harm for the
purpose of determining the severity of pun-
ishment. The framework grades the serious-
ness of conduct based upon the degree to
which a person’s living standard is
encroached upon when an individual interest
is impeded. Adaption of the framework to the
cyberbullying context seeks to determine
whether only some forms of cyberbullying
warrant criminalization based on the potential
harmfulness of the conduct. A victim’s living
standard, and hence quality of life, will be
affected to varying degrees depending on the
extent of the intrusion upon the victim’s inter-
est. This is determined either by the nature of
the conduct (the inherent harmfulness of the
conduct) and6 or by the duration of the vic-
timization. The potential harmfulness to a
person is assessed upon the sensibilities of a
victim who is neither particularly vulnerable
nor especially “thick skinned”.
Von Hirsch and Jareborg (1991) identified
four individual interest dimensions which are
central to personal well-being including a
person’s “physical integrity”, “freedom
from humiliati on”, “privacy6 autonomy” and
“material support and amenity”. The first
three interest dimensions are all highly rele-
vant to instances of cyberbullying. The inter-
est dimension “material support and
amenity” is less relevant, given that the
majority of cyberbullying instances do not
infringe upon a person’s tangible material
interests. However, the category may be rele-
vant in relation to instances of cyberbullying
in the workplace where the harm experienced
impedes a victim’s ability to work and, there-
fore, impacts a victim’s earning capacity. For
the purposes of this article, discussions relate
to the interest categories of “physical
integrity”, “freedom from humiliation” and
“privacy6 autonomy”, given that these are the
interest dimensions typically impeded in
instances of cyberbullying (instances will not
be consi dered specifically in a workplace
context).
The interest dimension “physical integ-
rity” embraces a person’s physical health and
safety (Von Hirsch & Jareborg, 1991). It is
impeded as a result of sustaining physical
injury (ranging from minor to severe injury).
In the cyberbullying context, the interest
dimension of “physical integrity” will be
intruded upon in instances of “happy
slapping” as a result of the physical assault
upon the victim (which is filmed and subse-
quently distributed). A victim of cyberbully-
ing in the form of “indirect threat” has this
interest impeded as a result of the apprehen-
sion of physical harm. Likewise, a victim of
“cyberstalking” will have this interest
impeded when the victim fears for his or her
personal safety. Von Hirsch and Jareborg
postulate that the rating of threatened harm
should depend upon the importance of the
risk and the degree to which it is risked. The
Cyberbullying 9
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avoidance of physical injury would generally
be regarded as an interest of high importance.
The likelihood of an indirect threat being car-
ried out influences the degree of risk involved
and this in turn discounts the level harm asso-
ciated with the conduct.
“Freedom from humiliation” refers to
“those injuries to self-respect that derive
from others’ mistreatment” (Von Hirsch &
Jareborg, 1991, p. 20). This interest dimen-
sion is highly relevant in the cyberbullying
context. Victims of “harassment” and “happy
slapping” are likely to have this interest
thwarted. In relation to “denigration”, visual
forms of “denigration” are highly likely to
impede this interest. “Denigration” using
words is, also, likely to result in an intrusion
upon the victim’s interest to be free from
humiliation. However, isolated instances of
denigration may not. “Denigration” by way
of posting a victim’s name to a deprecatory
“rating” list is more likely to cause a victim
“hurt”. In typical instances, such cyberbully-
ing will not impede any interest category
(although this may depend on the context of
the conduct). In relation to “masquerading”
or “impersonation”, it is highly likely that the
victim experiences an intrusion upon his or
her interest to be “free from humiliation”.
This is also likely to occur in instances in
which a victim’s personal details are publi-
cally disseminated without the victim’s con-
sent. Instances of “out ing” and “trickery” are
also highly likely to result in an intrusion of
the victim’s interest to be free from humilia-
tion. The very purpose of this form of cyber-
bullying is to humiliate the victi m publically
by tricking the victim into revealing embar-
rassing or highly personal private informa-
tion. “Exclusion”, by contrast, may not
impede this interest. The duration of the con-
duct in relation to this form of cyberbullying
determines whether or not the victim’s result-
ing condition is “harm” or mere “hurt.” The
more frequent and the longer the period over
which the conduct occurs, the more likely it
is to intrude upon the victim’s interest to be
free from humiliation.
The interest dimension “privacy6 autono-
my” is also highly relevant in relation to
cyberbullying, particularly in relation to
“cyberstalking”, “masquerading or imperso-
nation” and “outing” and “trickery”. Visual
forms of cyberbullying involving the dissemi-
nation of photos6 video recordings without
the subject’s consent also violat e this individ-
ual interest dimension. Th erefore, this interest
has relevance in relat ion to visual forms of
“denigration” (“denigration” by way of a sex-
ual or intimate image and “denigration” by
way of a non-sexual or intimate image) and
“happy slapping”.
A person’s quality of life is affected as a
result of an intrusion upon that person’s liv-
ing standard. According to von Hirsch and
Jareborg (1991), one’s “living standard” is
specifically defined as self-regarding capabil-
ities “involved in the quality of a person’s
own life” (p. 11). A victim’s living standard
is intruded upon where a victim’s individual
interest or even multiple individual interests
are impeded. The von Hirsch and Jareborg
framework offers a useful gradin g system to
be applied to an interest, or combination of
interests, that have been compromised. The
authors formulate a scale that reflects “the
degree to which a criminal act typically
intrudes into a person’s living standard” (Von
Hirsch & Jareborg, 1991, pp. 1718). Four
levels of intrusion are offered (Table 1) and
harm gradations are advanced accordingly.
The varying harm gradations reflect the grav-
ity of harm associated with a particular con-
duct. Column 3 of Table 1 has been added to
reflect the associated severity of impact on
the victim.
Where a person’s “subsistence” is
impeded, his or h er living standard is encum-
bered in the most profound manner. It is
equivalent to a first degree intrusion. A per-
son subjected to this degree of intrusion is in
a state of “just getting by” and enjoys only
minimal physical or cognitive functions. He
or she has minimal capacity for social func-
tioning (Von Hirsch & Jareborg, 1991). The
corresponding level of harm is “grave”
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harm. The severity of impact on the victim is
acute.
Where a person’s “minimal well-being” is
impeded, his or her living standard is seri-
ously com promised. It is equivalent to a sec-
ond degree intrusion. A person whose quality
of life is affected to this degree is highly
likely to experience “serious” harm.
A person’s “adequate well-being” (third
degree intrusion) may be impeded when a
victim’s quality of life becomes substandard
as a result of the intrusion. “Adequate well-
being” refers to an “adequate level of comfort
and dignity” (Von Hirsch & Jareborg, 1991).
The level of harm associated with this degree
of intrusion into a victim’s quality of life is
referred to in Table 1 as “upper intermediate”
harm and relates to “significant” harm. A vic-
tim is impacted in a moderate way as a result
of experiencing this level harm.
When a victim’s “enha nced well-being”
(fourth degree intrusion) is impeded, a vic-
tim’s living standard, and hence quality of
life, is only comprom ised slightly. The level
of harm experienced by a person whose living
standard has been impede d as a result of a
fourth degree intrusion is “lower inter-
mediate” harm. This level of harm relates to
mild harm, that is, harm which is not signifi-
cant, yet not margin al.
Below this level of harm lies “marginal”
harm, that is harm which is negligible or
merely trivial. In line with Feinberg’s princi-
ple of harm, this ought to be referred to as
“hurt” rather than harm. A person who expe-
riences “hurt” (“marginal” harm) experiences
no lasting intrusion upon any individual inter-
est and, hence, the person’s quality of life and
well-being is not impeded (Von Hirsch &
Jareborg, 1991).
Instances of cyberbullying may involve
more than one intrusion upon a victim’s inter-
est dimensions. Von Hirsch and Jareborg
(1991) offer an analysis of combination
harms. However, no formula is offered within
the framework, the gradation of combination
harms being a matter of judgement.
10
Let us
now turn to consider how various forms of
cyberbullying may be graded6 assessed.
It is exceedingly difficult to make a gen-
eral assessment rega rding the level of harm
associated with each particular form of cyber-
bullying. Von Hirsch and Jareborg (1991)
apply their analysis of harm in relation to
“standard” instances of “traditional” crimes,
e.g., offences of burglary or assault. They
assume, in rating the typical case of a given
crime, that a victim is neither particularly vul-
nerable nor especially resilient. This assump-
tion is adopted in making an assessment of
the level of harm associated with each partic-
ular forms of cyberbullying. In applying the
framework to instances of cyberbullying, it is
instructive to consider the forms of
Table 1. Levels of intrusion, harm and impact.
Intrusion Harm Impact
Living standard intruded (considered in
degrees) (von Hirsch and Jareborg)
Harm gradation (von Hirsch &
Jareborg, 1991)
Severity of impact
Subsistence (living standard intrusion;
first degree)
1 Grave Acutemost severe
Minimal well-being (living standard
intrusion; second degree)
2 Serious High
Adequate well-being (living standard
intrusion; third degree)
3 Upper intermediate (significant harm) Moderate
Enhanced well-being (living standard
intrusion; fourth degree)
4 Lower intermediate (mild harm) Low
No intrusion Marginal harm Minimal
Cyberbullying 11
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“harassment”, “denigration” using words and
“exclusion” as being of either longer term
(over a few months) or shorter term (over a
few weeks) duration. The potential harm of
the conduct increases the longer the target is
victimized.
Happy Slapping
“Happy slapping” impedes several interest
groups. The source of harm associated with
“happy slapping” is threefold: (1) harm asso-
ciated with the physical assault of the victim,
(2) harm associated with the filming of the
physical assault and (3) harm associated with
the public distribution of the film without the
victim’s consent.
A “happy slapping” assault is likely to
inflict, at least, moderate physical harm a
victim is likely to sustain substantial (yet not
serious) physical injury.
11
Substantial, yet not
serious, physical injuries are equivalent to a
third degree intrusion on the victim’s interest
category “physical integrity”. The assault
component of “happy slapping” is also
likely to impede the victim’s interest catego-
ries of “freedom from humiliation” and
“privacy6 autonomy”, given the humiliation
the victim is likely to experience as a result
of the physical assault and disregard of his or
her autonomy. This is likely to cause a victim,
at least, mild harm, equivalent to a second
degree intrusion. The aggregate harm for the
physical assault component of a “happy
slapping” instance is likely to result in an
“upper level” third degree intrusion.
A victi m is also likely to have the interest
categories of “privacy 6 autonomy” and
“freedom from humiliation” impeded as a
result of the filming of the assault without the
victim’s consent. There is also an aspect of
humiliation associated with being filmed
whilst being assaulted and treated in a humili-
ating or degrading manner. Additionally, a
victim’s interest to be free from humil iation
is intruded upon as a result of the public
humiliation associated with the distribution
of the attack on the internet. For the victim
who is not especia lly vulnerable, or “thick-
skinned”, these intrusions occurring as a
result of the filming and distribution of the
film, when combined, are likely to resu lt, at
the very least, in significant harm. Significant
harm is equivalent to a third degree intrusion.
The overall net intrusion is, in typical
instances, likely to be equivalent to serious
harm; likely to be a second degree intrusion.
“Denigration” by Way of a Sexual6 Intimate
Image
“Denigration” by way of a sexual6 intimate
image also impedes more than one interest
category. In typical instances, where the
image has been taken with consent (e.g., per-
haps whilst in a relationship), a victim is
likely to experience, at least, significant harm
as a result of the humiliation associated with
non-consensual public distribution of such an
image6 film.
The net harm associated with this form of
cyberbullying may typically be regarded as
“serious” harm.
In instances of “denigration” by way of a
sexual or intimate image, where the image is
taken without the victim’s consent, the over-
all net harm may increase slightly, given the
additional intrusion upon the victim’s privacy
(as a result of the image being taken without
consent).
Cyberstalking
In relation to “cyberstalking”, a victim is
likely to experience a third degree intrusion,
the interest category “physical integrity” as a
result of the fear of impending harm inherent
in this form of cyberbullying. This intrusion
is gauged by considering the apprehension of
harm associated with the conduct:
(a) the menacing nature of cyberstalking
is likely to cause a victim fear for his or
her personal safety (a second degree
intrusion);
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(b) the likelihood of the perpetrator actu-
ally compromising the victim’s personal
safety is, at least, mildly plausible
(fourth degree intrusion); and
(c) the likely overall intrusion can be
assessed as significant harm (third degree
intrusion) in relation to the victim’s
“physical integrity”.
The other interest likely to be impeded in
instances of “cyberstalking” is “privacy6
autonomy.” Sometimes this may involve a
perpetrator releas ing the victim’s personal
details. Other times, the perpetrator may
impede this interest category by virtue of
incessant online “following6 hounding”.
The net harm associated with this form of
cyberbullying may typically fall within the
“serious” harm range.
Masquerading or Impersonation
“Masquerading” or “impersonation” is a form
of cyberbullying that involves the perpetrator
pretending to be the victim. This usually
involves gaining access to the victim’s per-
sonal online identity or, for example, pass-
words to the victim’s email6 social media
account. One source of harm stems from the
invasion of privacy associated with the con-
duct. The other source of harm relates to the
humiliation the victim experiences as a result
of the perpetrator pretending to be the victim.
The overall net harm associated with the con-
duct may be graded a likely third degree intru-
sion which is indicative of “significant” harm.
Outing and Trickery
The sources of harm associated with “outing”
and “trickery” are twofold. The nature of this
form of cyberbullying is to humiliate the vic-
tim publically. Such instances involve the
perpetrator obtaining confidential information
of a private nature about the victim and dis-
seminating it publically without the victim’s
consent. As such, instances will involve an
invasion of the victim’s privacy and an inva-
sion of the victim’s interest to be free from
humiliation. Typical instances are likely to
result in significant net harm, equivalent to a
significant intrusion.
“Denigration” by Way of a Non-
sexual6 Intimate Image
“Denigration” can also occur by way of a
non-sexual6 intimate image. The sources of
harm are the same as those associated with
“denigration” by way of a sexual6 intimate
image. The non-consensual nature of the pub-
lic distribution impedes a victim’s privacy.
The public nature of the distribution of the
degrading6 demeaning image results in public
humiliation of the victim. However, the asso-
ciated harm is typically less severe than the
harm associated with sexual6 intimates
images given the very personal nature of
sexual6 intimate content. As such, the net
harm associated with this form of cyberbully-
ing is likely to fall within the “signific ant”
harm range.
Remaining Forms of Cyberbullying
The remaining forms of cyberbullying do not
typically involve combined harms.
The form “indirect threat” involves the
threat of impending physical harm. Victims
of an “indirect threat” experience an intrusion
of the interest dimension of “physical integ-
rity” as a result of the apprehension of harm.
Von Hirsch and Jareborg (1991) postulate
that the rating of threatened harm should
depend upon the importance of the risk and
the degree to which it is risked. The avoid-
ance of physical injury would generally be
regarded as an interest of high importance.
The likelihood of an indirect threat being car-
ried out influences the degree of risk involved
and this in turn discounts the level harm asso-
ciated with the conduct. As there is no for-
mula for gauging this discount offered by von
Hirsch and Jareborg , it is suggested that
“indirect threats” be gauged in the following
manner:
Cyberbullying 13
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(a) indirect threats to harm generally
threaten physical harm of a “serious”
nature (second degree intrusion);
12
(b) the likelihood of an indirect threat
being carried out depends on the particu-
lar circumstances. If one assumes that
the risk of the threat being carried out is,
at least, mildly plausible (fourth degree
intrusion) then
(c) the apprehension of indirectly threat-
ened harm may, overall, be gauged as a
third degree intrusion upon a victim’s
“physical integrity”.
A victim’s “personal integrity” is signifi-
cantly impeded as a result of such conduct.
‘Harassment’, both long term and short
term, involves an intrusion upon a victim’s
“freedom from humiliation” interest cate-
gory. Long-term “harassment” impedes this
interest to a greater extent. Significant harm
can generally be associated with typical
instances of long-term “harassment” given
the pers istent nature of the conduct. Short-
term “harassment” is likely to result in mild
harm, given the shorter duration of the
conduct.
The harm associated with long-term
“denigration” by way of words stems from
the humiliation nature of the conduct. Where
a person is victimized over a long period, this
conduct can generally be associated with sig-
nificant harm. Where the duration of the con-
duct is short term, the harm a victim is likely
to experience is lesser and, in typical instan-
ces, is likely to fall within the “mild” harm
range. Where a person is exposed to an iso-
lated instance of this form of cyberbullying,
harm is likely to be trivial.
The inherent nature of “exclusion” is to
humiliate the victim by denying the victim
access into particular chat rooms, not includ-
ing the victim on group “buddy lists”, etc.
Long-term instances are likely to impede the
victim’s interest category “freedom from
humiliation”. The impact is likely to be in the
“low” range associated with a fourth degree
intrusion into this interest categor y, and a
victim is likely to experience mild harm.
Where this conduct is only short-term, mere
trivial harm is likely to result.
In sum, it is posited that “standard”
instances of “happy slapping”, “denigration”
by way of an explicit sexual image or video
recording and “cyberstalking” can be typi-
cally regarded as causing a victim “serious”
harm. Instances involving “masquerading” or
“impersonation,” “outing” and “trickery”,
“indirect threats”, “denigration” by way of an
image (not sexual in nature), longer-term
“harassment” and “denigration” using words
can typically be regarded as causing a
victim “significant” harm. Shorter-term
“harassment,” “denigration” using words,
and longer-term “exclusion” are more likely
to cause a victim mild harm. Isolated instan-
ces of “denigration” using and shorter-term
“exclusion” are generally more likely to
cause a victim marginal harm.
This assessment of the harmfulness of
standard instances of particular forms of
cyberbullying demonstrates that different
forms of cyberbullying impede a victim’s
individual interest s to varying degrees based
on the gravity of harm associated with each
particular form of cyberbullying, reflecting
empirical research findings.
Gravity of Harm as a Constraint
on Criminalization
Given the infancy of cyberbullying research,
there is a strong argument to be made that the
forms of cyberbullying having the most
severe impact on a victim (by causing the
greatest level of harm and thus impeding the
victim’s interests to the greatest extent) war-
rant criminalization. It is to this issue we now
turn.
“Happy slapping”, “denigration” by way
of an image or video recording of a sexual6
intimate nature, and “cyberstalking” are typi-
cally the most serious forms based on: (1)
findings of perception based-studies con-
ducted in various countries; (2) findings of
the only published study evaluating the
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severity of impact between various modes of
cyberbullying demonstrates; and (3) an
assessment applying von Hirsch and
Jareborg’s crime seriousness framework. The
State has very good reason to criminalize
such conduct, for the probability of harm is
highly likely in these instances.
“Indirect threats”, “denigration” by way
of an image or video recording of a non-sex-
ual in nature, “outing” and “trickery”,
“masquerading” or “impersonation” are typi-
cally harmful forms of cyberbullying, the
gravity of their harmfulness likely to yield as
“significant”. “Harassment”, “denigration”
using words instead of an image or video
recording fall into this harm bracket where
the conduct occurs over a longer period of
time (a few months or more).
The probability of harm is significantly
lower where the duration of “harassment”
and “denigration” using words only is short-
lived. These forms of cyberbullying are not
as serious (being less harmful) . Long-term
“exclusion” is also typically less harmful. A
State should be cautious in criminalizing
such forms. Although these forms of cyber-
bullying still typically impede an individual’s
interest dimension, it is to a much lesser
extent. The less serious the conduct, the
greater the need for a State to act cautiously
before criminalizing conduct.
Typically, short-term “exclusion” and
isolated instances of “denigration” using
words only are likely to impact a victim in a
marginal way. Criminalization is less likely
to be warranted based on the low gravity and
corresponding probability of harm associated
with this cyberbullying. Table 2 ranks forms
of cyberbullying from the most serious to the
least serious.
“Top-end” (first tier) manifestations of
cyberbullying (“happy slapping,” “denigration”
bywayofasexualorintimateimage,or
“cyberstalking”) warrant criminalization. The
degree of harm associated with these forms is
likelytobeserious.
The forms encapsulated in the second
tier represent those forms of cyberbullying
the State could criminalize based on the
gravity of harm associated with the b ehav-
iours. However, a State ought to exercise
caution before criminalizing this conduct,
given that forms which fall in this tier are
less harmf ul than “top-end” forms. By
criminalizing these forms, the “net”
(Blomberg & Co hen, 2003)iscastjusta
little wi der, potentially criminalizing a
much larger portion of individuals. In the
event that these forms are criminalized,
individuals should be diverted away from
the adversary criminal process where possi-
ble: police cautions may be appropriate to
Table 2. Forms of cyberbullying ranked from most serious to least serious.
Manifestations of cyberbullying Criminal justice response
Happy slapping; Denigration (sexual/intimate
image); Cyberstalking
Criminalization is warranted. A criminal sanction
should be imposed.
Masquerading or impersonation; Outing and
trickery; Indirect threat;
Good reason to criminalize, but a state should
approach criminalization cautiously.
Denigration (derogatory nonsexual /intimate
image); Harassment (long-term); Denigration
(by words, long-term)
Harassment (short-term); Denigration (by words
only, short-term); Exclusion (long-term)
Utmost caution should be exercised given the lesser
gravity of harm associated with these forms.
Exclusion (short-term); Denigration (by words
only, isolated instances)
Criminalization is not warranted.
Cyberbullying 15
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reprimand first time off enders, juveniles
should receive a police caution or, in the
alternate, be diverted to diversionary
schemes such as famil y confere ncing to
resolve the matter.
The State should be very cautious
before criminalizing th e ma nife st atio ns
encapsulated in the third tier, these forms
being far less harmful than the above two
tiers. An official criminal justice response
should be avoided. Creating a criminal
offence capturing these forms may open
the law up to ridicule on account of the
“commonness ” of the beha vi our s. Th e cos t
associated with burdening law enforcement
with such matters requires careful consid-
eration. The encroachment of freedom of
speech also requires consideration. The
implications associated with casting the
“net” even wider to capture these behav-
iours require deliberation. The implications
of potentially criminalizing a large portion
of individuals for far more “mundane”
behaviour (given the relatively low ranking
associated harm) also require serious
examination.
The “bottom-end” (bottom tier) forms of
cyberbullying do not warrant criminalization
at all. The low gravity of harm associated
with these forms should constrain a State
from creating a criminal offence. The costs
and impracticalities of policing these forms,
and the associated counter-productivity of
creating a criminal offence which captures
these behaviours, leads to a steadfast conclu-
sion that an official criminal justice response
is not warra nted.
Concluding Remarks
Joel Feinberg offers the “harm principle” as a
justification for criminalizing wrongful con-
duct where the conduct causes harm to othe rs.
Cyberbullying is wrongful, potentially harm-
ful conduct. Some forms of cyberbullying are
potentially more harmful to a person than
others. That being the case, the State needs to
avoid the criminalization of trivial harm.
This article assesses the potential harm
associated with various forms of cyberbully-
ing based on initial empirical rese arch and a
crime seriousness framework originally
applied to traditional crimes. The analysis
provides valuable theoretical insight into the
associated harms of all forms of cyberbully-
ing. This is significant in light of the infancy
of the research in this area. The research
demonstrates that the various forms of cyber-
bullying are indeed associated with different
levels of harm. It concludes that, based on a
principle of harm, not all forms warrant
criminalization. In the cyberbullying context,
“happy slapping”, “denigration” by way of a
sexual or intimate image or video recording
or “cyberstal king” represent the most serious
forms of cyberbullying. On this analysis, the
State can justifiably criminalize these behav-
iours. At the other end of the spectrum, there
are some forms of cyberbullying (for exam-
ple short-term “exclusion” and isolated
instances of “denigration” using words) that
do not warrant criminalization. The forms of
cyberbullying, which lie between the “top-
end” and “bottom-end” of the harm scale,
require careful consideration by policy-mak-
ers before criminalization of these
behaviours.
According to the assessm ent offered, a
criminal law response to the most serious
forms of cyberbullying is warranted. States
ought to conduct comprehensive reviews of
existing criminal laws to ensure these forms
are governed in an inclusive and comprehen-
sive manner.
Notes
1. For the purposes of this article reference to
the harm principle, as a dominant justifica-
tion within criminal law theory, provides a
standard to which the various forms of cyber-
bullying are held and acts as a guide as to
which forms may warrant criminalization.
2. It is possible to argue that cyberbullying is
also a collective harm in the sense that soci-
ety as a whole suffers when standards of
behaviour fall below what is generally
regarded as “acceptable” behaviour.
16 C. Langos
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3. For the purposes of the discussion it is not
necessary to evaluate which mental states
belong to the category of “hurts” and which
belong to “offences”. Feinberg also includes a
category of “other unpleasants” in his frame-
work of “other disliked but not harmful” con-
ditions. Feinberg refers to this category so as
to include the many miscellaneous disliked
but not harmful states of mind that can be pro-
duced by the actions of another which may
not fit into the main categories of “hurts” or
“offences” (Feinberg, 1984,p.47).
4. “Modes” of cyberbullying are distinguish-
able from “forms” of cyberbullying dis-
cussed earlier in the paper. “Modes” of
cyberbullying refers to the various channels
through which cyberbullying can be carried
out. For example, cyberbullying via web-
sites; SMS text messages, email, picture6
video clip, chat rooms, instant messaging,
websites, social networking sites.
5. “Cyberstalking,” “exclusion,” “masquerading”
or “impersonation”, and “outing” and
“trickery” were not examined in the study.
6. The Standing Committee of Attorneys-
General is now known as the Standing Council
on Law and Justice (SCLJ).
7. For example, Schoolboys counselled on net
pics, MX Newspaper, 21 February 2002;
Teen put on gay site may lead to camera ban,
Herald Sun (Melbourne), 11 June 2003, 25;
Parents warned over online beach photos,
The Age (Melbourne), 27 January 2005.
8. These factors were also recently discussed by
Bluett-Boyd, Fileborn, B., Quadara, A., and
Moore (2013), p. 36.
9. Unreported case. See, Aston (2012).
10. It would be difficult to apply a ridged for-
mula to matters which involve qualitative
judgement.
11. Note, many “happy slapping” instances
involve an assault of a very serious nature.
Where serious or grave harm is inflicted, the
analysis would produce an even higher
aggregate level of harm associated with the
physical assault component and, in turn,
result in a higher level of net harm for
“happy slapping”. The physical assault com-
ponent of “happy slapping” is punishable in
all Australia jurisdictions.
12. It is more likely that a perpetrator will
threaten “to kill” a victim, “break a victim’s
arm6 leg”, “beat up” a victim, “shoot” a vic-
tim, etc. (threaten serious injury in order to
intimidate a victim) than to threaten injury of
a less serious nature (such threats are less
likely to intimidate a victim).
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