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Trolling, Cyberbullying and Catfishing
Substantive Law| What area(s) of law does this episode consider? | Criminal law, in the context of catfishing and addressing instances of harassment and abuse conducted through internet services. Judge Paul Conlon SC discusses the legal reforms which are being explored in the increasingly complex and ever-evolving issue of tackling harassment and abuse occurring on social media and via the internet. This episode considers the Office of the eSafety Commissioner, a new government taskforce set up with the role of promoting online safety education for Australian young people, educators and parents as well as provides a mechanism, effective or otherwise, for victims of cyberbullying and online harassment to report illegal or offensive content, and how the law might change to create more tools for combatting online harassment. In the second part of the episode, Kent Park discusses the legal complexities surrounding incidents of ‘catfishing’ where individuals create fake profiles online and present themselves as someone else in order to obtain some personal satisfaction or benefit whether that’s sexual, violent, financial or otherwise. |
| Why is this topic relevant? | Sadly, we know that Australia has one of the highest suicide rates per capita in the world, and that suicide it is the leading cause of death for all Australian aged between 15-44 years of age. And victims of cyberbullying are said to be twice as likely to attempt suicide and self-harm. In Judge Paul Conlon SC’s professional and personal experience assisting victims of cyberbullying and advocating for more effective legal responses to cyberbullying, he has observed the enormous harm that cyberbullying and trolling can have on the psychological wellbeing of even the most strong-willed adults. Under the current laws activities such as online domestic abuse, child sex exploitation, stalking, violent extremism and other activities of a criminal nature are typically of a severity and a repeated nature to create sufficient evidence to enable a successful prosecution at State or Federal level. As such the existing criminal codes are sufficient to combat such criminal activity. However, cyber bullying does not often occur in a way that makes it a criminal offence and as such, makes prosecuting online trolls much harder. Legislative changes were announced in December 2020, following the recording of our episode with Judge Paul Conlon SC. New laws proposed by the federal government in December 2020 could see individuals facing fines of up to $110,000 and companies up to $550,000 if they fail to take down abusive content within 24 hours. The new legislation will hand the eSafety Commissioner new powers, ranging from enforcement powers to issuing formal warnings or fines. The new powers will also enable the eSafety Commissioner to compel online platforms to provide more user account information, to try and better establish the identities of perpetrators. The issue of cyberbullying, online harassment and abuse continues to prove a highly dangerous occurrence in modern society and will only grow more prevalent and pervasive an issue the longer it goes unchecked. Catfishing is an equally important cybercrime issue and can have similarly devastating effects just like cyberbullying. Considering our modern day reliance on the internet for everything from storing our work or keeping up with family, from making new friends to finding life partners, it’s no surprise that frauds, sexual predators and vengeful individuals have used the rise of online dating sites, chat rooms and social media platforms to manipulate others. Perpetrators prey on specific people or types of people in order to gain some personal satisfaction or gain, whether sexual, violent, financial or otherwise. In 2013 the ACCC estimated that of the $90 million Australians lost to fraud, 30% of that amount was related to catfishing, highlighting the ever increasing prominence of this issue and the lack of appropriate legal solutions for victims. Currently catfishing can only be prosecuted under section 13 of the Crimes (Domestic and Personal Violence) Act or section 192E of the Crimes Act regarding ‘obtaining financial benefit by deception’, meaning many instances of catfishing result in no legal consequence for the perpetrator. |
| What legislation is considered in this episode? | Criminal Code Act 1995 (Cth) s 474
Crimes Amendment (School Protection) Act 2002 (NSW) s 60E
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Crimes Act 1900 (NSW) s 192E
Criminal Code Amendment (Protecting Minors Online) Bill 2017 (Cth)
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Exposure Draft – Online Safety Bill 2020 Fact Sheet – Online Safety Bill 2020 |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Social media connects us to our fellow humans near and far, opening up a wide world of content while simultaneously making the world a much smaller place. Now most of us know that social media platforms have their hidden costs, as the old adage goes “if you’re not paying, you’re the product.” But for kids and teenagers in Australian schools, social media presents an entirely different 21st century dilemma. Social media helps school students stay in touch with one another, but it can also be used as a tool for online abuse, cyberbullying and trolling. The rise of “cancel culture” on a global scale makes you wonder about the trickle-down effect these toxic campaigns have on young people. Is there a legal response that can cure this social problem? Or is the problem a cultural one? When technology advances much more rapidly than the legislation intended to regulate its use, how can lawmakers ensure that responses to trolling and cyberbullying remain fit for purpose. Here to discuss the current state of affairs and recent reform proposals in this area is our guest today Judge Paul Conlon from the District Court of New South Wales. Paul, thanks so much for joining me today on Hearsay. |
| Judge Paul Conlon SC: | Thank you for having me on. |
| DT: | Now before we jump into the topic, I wanted to ask you about your relationship with trolling and cyberbullying. How did you become an advocate in this area? |
| PC: 2:00
3:00 | Not through any real personal experience of my own, but I have known Erin Molan who’s a sports presenter for Channel 9, I’ve known her for about 7 years going back to about 2013. I have become aware that she has been a victim of targeted harassment, offensive comments over a number of years and I’m also aware that she has been impacted psychologically and mentally. Earlier this year she contacted me to say “well, in my view, enough is enough. We need to do something about this”. She had Warren Mundine on board, and she wanted to get my assistance in relation to running by certain legal aspects of what might be able to be done. And so as a result of that I met with her earlier this year, we established a strategy of how we might move forward and along with Erin and Warren we managed to get an audience with the Federal Communications Minister. TIP: Now many of you would’ve heard the name Erin Molan. As Paul’s already mentioned, she’s a sports presenter on Channel 9, but she was also the subject of relentless bullying and harassment from online trolls and she’s now an outspoken advocate for the need for change in this area. |
| DT: | Now I’ll talk about that proposal in a moment but first I want to start with the status-quo; what’s currently in place. Now at the moment that’s the eSafety Commissioner who’s more or less responsible for the issues of cyberbullying and trolling, especially in schools. What is the eSafety Commissioner’s role more broadly and what powers do they have? |
| PC:
4:00
| Presently the eSafety Commissioner has a, this is my terminology, a solid reputation for online education and awareness raising. But in my view it has been ill-equipped to be able to adequately deal with the problems that it was first set out to attempt to cure. Because we’re not just talking about take down notices in relation to the expanding problems as we now see it. And that’s primarily the tool that they have in order to be able to combat some of the problems that we see with online harassment and bullying. TIP: Now here Paul is referring to Julie Inman Grant, Australia’s eSafety Commissioner. The eSafety Commissioners role is to promote and provide online safety education for young people, educators, parents, seniors and others with the intention of helping all Australians have a safer and more positive experiences online. The eSafety Commissioner also provides a complaints mechanism for Australians who experience serious cyberbullying, empowering them to take action and report illegal or inappropriate online content. |
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5:00
6:00 | The present proposals, which we may come back to and that is the minister Fletcher, telecommunications minister, he proposes something in the vicinity of 48 hours to 24 hours take down of issues. What we’re attempting to deal with has gone well beyond take down notices. In respect of their inability to be able to deal with matters, I think I can give you one example being the civil penalties scheme for perpetrators of image based abuse, colloquially known as the ‘revenge porn’. And that was set up in September 2018 and according to the eSafety Commissioner’s report in 2018-2019 in the 8 months following the commencement of that scheme the commissioner received 849 reports of image based abuse. In those 8 months, 8 out of a 849 reports the Commissioner issued just one removal notice, three formal warnings and eight informal warnings. In other words action was taken on merely 12 of the 849 reports. Now obviously the eSafety Commissioner as I vindicated, does a lot of work encouraging and helping young Australians, parents and schools to deal with cyberbullying via education, but it is inadequate in dealing with the complaints in an appropriate way with the sort of seriousness and standards that we might expect in the community. |
| DT: | And to bolster or augment the eSafety Commissioner’s educational role, what is it that you propose? |
| PC:
7:00 | Well our proposals are that we need a legislative scheme which is going to hold to account the perpetrators of this targeted online and systemic abuse, offensive comments, racial targeting, sexual abuse and at the present moment there is no effective weapon or tool. Now ultimately how a government might set about attempting to deal with that issue will be ultimately very much a matter for the government. We were fortunate in being able to get Erin Molan an audience with the Prime Minister to set out the problems, to set out some of the initiatives that we believe the government may look at. Now I don’t necessarily want to go into how we’re suggesting this problem can be dealt with, but all I’ll say to you at this stage is that it’s not going to be solved by an extension of the powers of the eSafety Commissioner. We need to have a body with far greater extensive powers in order to be able to have these persons receive accountability for their actions. |
| DT:
8:00 | I suppose there are some who would say, “well the law is never going to be able to keep up with technology, so there’s really no adequate legal response to all of this.” TIP: Now in the time since our episode with Paul was recorded, there’s actually been some legislative progress in this area. New laws proposed by the federal government in December 2020 could see individuals facing fines of up to $110,000 and companies up to $550,000 if they fail to take down abusive content within 24 hours. The new legislation will hand the eSafety Commissioner new powers, ranging from enforcement powers to issuing formal warnings or fines, significantly increasing the Commissioner’s scope. The new powers will also enable the eSafety Commissioner to compel online platforms like Google or Facebook to provide more user account information, to try and better establish the identities of perpetrators. Keep this in mind while you continue listening, as this was announced after our episode with Paul. It’s definitely a step in the right direction in this area. We’ll leave a link to the Online Safety Bill Fact Sheet and the Exposure Draft for the Bill in our show notes. In terms of the current responses that are available under the law as it currently stands, I suppose the criminal offences that might respond to this kind of conduct, the kind of stalking and intimidation charges that exist at the moment but they’re not really adequate to deal with online anonymous conduct are they? |
| 9:00
10:00
11:00
| So the rise in bullying, abuse, targeted reputational damage, has really made the online world a potentially dangerous place in my view. And activities such as online domestic abuse, child sex exploitation, stalking, violent extremism and other activities of a criminal nature, they are dealt with under the criminal codes, both federally and state. But those crimes are typically of a severity and a repeated nature to create sufficient evidence to enable a successful prosecution at state or federal level at the moment under those laws. However section 474 of the Commonwealth Criminal Code that is where a person can be charged with using a carriage service to menace, harass or cause offence. And typically to bring a successful prosecution, in respect of using a carriage service to do that, the law still generally requires that there be an intention to bring about the purpose for which it is posted online. TIP: Section 474 of the Commonwealth Criminal Code provides that a person can be charged with using a carriage service, that’s the internet, to menace, harass or cause offence. This provision could naturally be used to bring about successful prosecution of a majority of cyberbullying offences, except for the fact that the law still generally requires that there be intention to bring about the harmful result of an offensive post. This makes it a lot harder to prosecute instances of harassment and bullying conducted through social media since intention can be pretty difficult to establish when an individual deliberately commits the offence in anonymity. My view is that that present legislation is totally inadequate, why do we need to have the prosecution put to proof in relation to intention? My view is that always should be an absolute offence, that is; as soon as you press the keyboard, you are then responsible for producing material which falls into any one of those categories. We shouldn’t need for the prosecution to be able to prove an intention to be able to bring about that result. It should be an absolute offence. But the question that you’re really asking is that in respect of the present problems of those persons using social media forms to target individuals with grossly offensive behaviour and grossly offensive comments, there is no present legislation which can adequately cover that. And part of the reason for that is the anonymity of the persons who manage to get themselves online and really hide their identity. |
| DT: 12:00 | You mentioned absolute liability, strict liability or absolute liability before. I suppose one interesting dynamic with this kind of conduct and particularly a criminal sanction in relation to it is that particularly in schools, many of the victims and offenders are going to be young people. How do you see that dynamic that the youth of both offender and victim play out in a criminal process, especially if there’s a strict or absolute liability component? |
| We’ve used the word ‘criminal’ and I’ve used the word ‘criminal’, I think we see this more as developing a quasi-criminal body to be able to deal with perpetrators that has the ability to hand out significant punishments. But they would also have the ability, as for example the children’s court has, to be able to deliver appropriate penalties depending on the age, maturity of those persons that come before them. | |
| To have the kind of powers that suit the population that’s interacting with that body. | |
| PC: 13:00
14:00
15:00
16:00 | Exactly. Now and obviously there will be a wide range of offending material and there’ll be a wide range of perpetrators going from children who are involved, unfortunately, in this continual bullying of children at school which is hugely impacting the mental health of kids these days. TIP: One of the most public criminal prosecutions of cyberbullying in Australia is the case of Shane Gerada. Shane Gerada sent over 300 threatening text messages to 17 year old Allem Halkic over the course of a few months. Soon after these events Halkic committed suicide. Gerada pleaded guilty to a stalking charge and received a sentence of only 200 hours of community service. In response to the strikingly lenient sentence, Alastair Nicholson, chair of the National Centre Against Bullying and former Chief Justice of the Family Court, expressed his view that there needs to be more specific cyber-bullying laws in which “people can operate and know what they can and can’t do”. Nicholson also indicated that without a specific offence for cyber-bullying, cyberbullying perpetrators are being charged with the wrong criminal offences with drastic effects like being placed on sexual offences registers. So it doesn’t seem like the status quo is working either for complainants or for offenders. And I mean just recently we saw, I think the government proposing that they were going to put aside more money to be able to have more trained professionals in schools to be able to deal with the mental health of children who are being subject to this. That’s great, I applaud that. However, we’re still not dealing with the cause of the problem of their mental health, and that’s what we’re concerned with. I mean I’ve got five grandchildren, I’ve got my ear to the ground to be able to take in information from various people that I know within schools. In fact my eldest daughter is a school teacher. She said that the incidents of what’s going on, these days both at school and after school hours, is having a huge impact on children who are subject to this type of abuse. And it’s an incredible thing to say isn’t it, that that’s what’s happening in our schools at the present time, but it is. And it’s incredibly concerning to me, my eldest granddaughter who’s in year 7 this year tells me that they’re allowed to have their phones all day. They can have their phones in school, during recess, the kids are on the phones the whole of recess. Clearly they’re on the phones after hours. Because that’s when they set about their work. TIP: Now you may be wondering where does cyberbullying fit in, in the current Australian criminal framework when it happens in schools? NSW is currently the only Australian jurisdiction to enact legislation that is specifically directed at cyberbullying in schools. The Crimes Act 1900 (NSW) was amended by the Crimes Amendment (School Protection) Act 2002 to make a special criminal provision in s60E which makes it an offence to stalk, assault, harass or intimidate any school student or school staff while attending the school. However, s60E only covers conduct that occurs on the school’s premises, or while entering or leaving the school’s premises for the purpose of school activities. Now the limited application of the provision decreases its applicability for cyberbullying cases because they might not cover cyberbullying that takes place outside of schools, such as a student’s home. The law would be more applicable in criminalising cyberbullying by expanding the scope of the legislation to include cyberbullying that occurs by a bully on school premises targeted at a person not on school premises, or vice versa. |
| 17:00 | Now that raises an interesting point, which is our social expectations around the way children interact with technology, the way our schools address that use of technology. There might be listeners or members of the community who say, cyber bullying, trolling at their core they’re social issues, they’re issues for parents to deal with and they maybe need to be responded to through cultural change and cultural responses rather than a legal change. But why is it important to address these issues legally? |
| PC:
18:00
19:00
20:00
21:00 | Because that is the only way that I see that we are going to make an impression on this ever increasing problem. TIP: 1 in 5 Australian young people reported being socially excluded, threatened or abused online, which is a pretty grim statistic. 55% of young people sought help from their parents, 28% from friends and 38% blocked the offending social media account. Now these numbers have increased as a result of the COVID-19 pandemic. Since the beginning of the pandemic, many students have moved to exclusively online learning, at least for a time, increasing their use of digital and social media platforms in order to remain in contact with their friends while isolating or being socially distant when necessary. The eSafety Commissioner reported a 32% increase in youth-based cyber bullying from March to September 2020, compared to the monthly average for the same period in 2019. Many many years ago, of course when I was at school, and I’m talking about ancient history now if there were kids that were subject to bullying, you might think after three o’clock they were going to be able to escape that. Now, there’s no escaping it, we know there’s no escaping it, because it goes on overnight because they’re on social media platforms every day and every night of the week. We know the online abuse of this nature is a significant contributor to mental health in both young people and adults alike. We know that Australia has one of the highest suicide rates per capita in the world, and it’s sadly the leading cause of death for all Australians between 15-44 years of age and victims of cyberbullying are said to be twice as likely to attempt suicide and self-harm. Now each year in Australia 65,000 people attempt suicide and for every one of these people, many others are impacted, including their friends, family members, schoolmates and work colleagues. So the status-quo, what we’ve got at the moment, how do we deal with it, as a social problem? Can we just encourage the victim to let it wash over them? The old stick and stones approach? Victims of online abuse should not have to withdraw from social media because others cannot behave according to normal, respectable standards. It’s simply not good enough to tell victims of this “pay no attention to it”, to tell young kids at school “just don’t bother yourself with going on to these various platforms”, that’s not going to help with children because they will be reminded by all their friends that all saw it online the previous night. So it’s got such far reaching consequences that there needs to be a tougher approach to be able to deal with it. To cast it into the public spotlight and under the gaze of the public and community, to hopefully really hit home with them the devastating impact that we’re now seeing throughout young persons in our community and adults alike. So I think that there is a need for something much stronger than what we have. TIP: Now cyberbullying and trolling: what is the difference? The term cyberbullying and trolling are sometimes used to mean the same thing, however, they are quite different in terms of the intention and relationship between the two parties. Trolling is quite often performed by a person without a clear or established relationship to their intended recipient; they might be strangers. Their goal is to anger people by provoking a reaction out of them often for their own entertainment. Cyberbullying, on the other hand, is usually used to refer to more targeted conduct and usually involves people who are familiar to each other, with the person who’s doing the bullying having a clear intention to cause harm to specific people repeatedly over a pattern of conduct rather than a one-off incident. |
| And of course we’d never say to a victim of verbal intimidation or harassment, that occurs in the real world, well “just adjust your behaviour”. | |
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22:00 | Well exactly right, as I’ve said we do have laws which of course take care of the type of abuse that happens in domestic violence situations and police will charge on evidence that comes before them in relation to that type of abuse. But just imagine if our approach was now listen, we won’t let the police deal with it, we’ll just have somebody go down there and say “look just don’t pay any attention to it, tomorrow might be a better day”, you know “he might not come home intoxicated, and the same level of abuse you might not suffer tomorrow.” It would simply be a laughable approach. TIP: As Paul mentioned, everyday hundreds of Australians are being bullied online. Some suffering so much trauma from repeated cyberbullying that they take their own lives. Jessie Tolhurst was 14 years old. Libby Bell was 13. And Jessica Cleland was 19. Each of these young Australians underwent relentless bullying which ended in them taking their own life. While the families of these teens want to see Australia beef-up its laws to protect victims of cyberbullying, the eSafety Commissioner Julie Inman Grant said it is crucial that we should instead raise awareness of the resources that can prevent devastating actions. She commented: “While laws can address the damage after the fact, they might not serve as a deterrent to teenagers, whereas education and early intervention can prevent devastating outcomes”. Something to think about. |
| DT: 23:00
| And I suppose the old adage that “the medium is the message” that the way we communicate something can have a huge impact on what’s communicated and the impact of the communication. And that social media platforms, new ones are introduced all the time, they often have novel concepts in terms of the content that’s produced on them and it’s an entirely new medium. |
| PC:
| As I’ve indicated that might be one of the very large difficulties for the legislator but having said that, when the police prosecuting authorities are dealing with an alleged offence these days, ultimately there will be a prosecutorial discretion as to whether the evidence they have available is sufficient to place before by way of example a criminal court. Well obviously there will be discretionary issues in relation to who might fall foul of that legislation. And there will be material which will fall within it and there will be material which will fall outside of it. And that will be the responsibility then of other governments in the future as to whether there needs to be an extension or expansion of the present regime. |
| DT: 24:00 | Well it is an enormous policy challenge, there are a great many dimensions to solving it, but it sounds like one thing’s very clear that as you said earlier in the episode, the status quo isn’t enough. |
| It’s not. | |
| DT: | Paul thanks so much for joining me today on Hearsay to talk about this important issue. |
| Thank you. |
Part 2: Kent Park
| DT:
25:00
| Today, we use the internet for just about everything — including getting your CPD points through a podcast. From storing our work or keeping up with family, from making new friends to finding life partners. Unfortunately, due to the widespread accessibility of the internet it’s relatively easy for frauds, sexual predators and vengeful individuals to create fake profiles online and present themselves as someone else in order to obtain some personal satisfaction or benefit whether that’s sexual, violent, financial or otherwise. This behaviour is known as ‘catfishing’; a term first coined in 2010 following the release of the documentary ‘Catfish’ which told the story of a young man who was lured into an online relationship with a 19-year old woman, who in fact, turned out to be a 40-year old woman. Since then the popular MTV series ‘Catfish’ has told stories of increasing incidences of catfishing corresponding with the rise of online dating sites, chat rooms and social media platforms. In 2013 the ACCC estimated that of the $90 million Australians lost to fraud, 30% of that amount was related to catfishing. So that’s quite a lot of money. This prompts the question: is catfishing illegal? While catfishing can be prosecuted under section 13 of the Crimes (Domestic and Personal Violence) Act or section 192E of the Crimes Act regarding ‘obtaining financial benefit by deception’, it doesn’t cover all incidences of catfishing as our guest today will tell us. Here today to help us understand the complexities of catfishing and the law surrounding it is Kent Park, senior practitioner at Sydney Criminal Lawyers. Kent thanks so much for joining me today on Hearsay. |
| Kent Park: | Oh it’s a pleasure David, thanks for having me. |
| DT: | Now Kent, you recently said recently shared insights on catfishing in a Law Society Journal article in June 2020, we’ll include a link to that article in our show notes for this episode. But, in your LSJ article you mentioned that there are two types of catfishing; could you explain this a bit more? |
| KP: 26:00
27:00 | One’s commonly known as ‘causing mental harm’ or ‘stalking’ which is covered under section 13 of the Crimes Personal Domestic Violence Act. And the other one is more about fraud where someone who by any deception or dishonestly obtains some property from that person and usually those are the perpetrators of the catfishing and the victims have been, essentially, lost some money, lost some property due to the deception of the perpetrator. TIP: Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 imposes a maximum penalty of 5 years imprisonment or 50 penalty units, or both, for a person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm. Instances of catfishing that are covered under this section are more likely to be personally and maliciously, rather than financially, motivated, which resembles the motivations of online trolls that we spoke about earlier with Judge Conlon. Section 192E of the Crimes Act 1900 outlines the court’s approach to offences of fraud, deception and dishonesty in obtaining property belonging to another or obtaining any financial advantage or causing financial disadvantage to another – the maximum penalty for which is 10 years imprisonment. It is important to note that catfishing in the pursuit of romantic or sexual goals where there’s no intent to cause fear or harm or to obtain property dishonestly, isn’t covered by these sections – which is a serious gap in our criminal legislation. |
| DT: | Now those are the two types of catfishing that are covered by existing laws but as we’ll talk about a bit later that doesn’t necessarily catch all instances of catfishing. But, for some of our listeners they might be familiar with the term, familiar with the practise of catfishing, I suppose if we can call it that from the MTV TV show or the documentary that preceded it. For someone who’s not familiar with catfishing, Kent, tell me a little bit about what it looks like. |
| KP: 28:00 | I think it can be coined as someone creating a fake identity on a social media platform. I mean creating a certain persona specifically targeting the victim for the purpose of say, self-gratification, for the purposes of abuse, deception or fraud. |
| DT: | And that happens over quite a period of time doesn’t it? It’s not something that you can, say, do overnight? |
| KP: | No, I think it’s the case where the perpetrator has to, I guess, convince or manipulate, or convince the person, that who they are is who they are pretending to be, does take a long time to convince them and unfortunately for some people it takes a shorter period than others. It’s been said, some of them take years until they’ve come to realise. I think some people may never realise that they’ve been a victim of catfishing. |
| DT: | And it’s not exclusively the case but often catfishing is a form of, kind of romance scam, the personal relationship that they’re creating with the victim is often a romantic one. |
| KP: 29:00 | I think so, I think the most common would be the romantic one and it’s the case where people are looking to get into a relationship, it’s sort of a fantasy where they’re speaking to someone online who matches their personality or they’re getting along really well with and I think that’s what perpetrators take advantage of I guess. |
| DT: | And I suppose that leads me to my next question: what does a catfishing perpetrator or even a catfishing victim look like? You know without putting either in a box, are there characteristics that in your experience you’ve seen that perpetrators and victims share? |
| KP:
30:00 | In a strange way with respect to the victims in these matters they do, I’ve seen, share similar characteristics to the perpetrators where they’re unfortunately not sociable people. They might be unsocial in person but they like to interact on the computer rather than in person. And it’s a common trait amongst both perpetrators and victims where they might be very socially awkward in person. But behind a phone, behind a computer, that’s where they seem to strive in speaking to other people. And that seems to be unfortunately, a common trait amongst the victims of catfishing. |
| DT:
| I suppose that’s kind of an insidious side effect of that profile in that when a victim realises that they have been the victim of fraud or deception or stalking or intimidation, if they aren’t very comfortable with dealing with difficult situations in person it can make it difficult to report or seek some help in relation to that. |
| KP:
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| Yeah true, true it’s, it’s embarrassing for people. It’s not something one would be proud of when they’ve discovered they are a victim of catfishing. It’s embarrassing to explain it to friends, explaining it to the police, no doubt a lot of answers that people give when they’re told their friends or family they’re victims of catfishing is “how didn’t you know this?” Like, “how could you be so stupid?” but it’s one of those cases where some people are easily manipulated, some people manipulate well, and it’s just that unfortunate combination, if I could put it that way, that leads to victims of catfishing. TIP: According to Scamwatch, Australians lost over $175 million dollars in 2020 only based on data gathered from over 200 000 scam reports. Of these, almost $40 million is attributed to dating and romance scams. In 2020, there were 3,708 reports of dating and romance scams, with almost 35% of reports indicating financial loss as a result. These scams were largely delivered through social networking apps, followed by mobile applications, with 45-54 year-olds being the age groups most targeted. Compared with Scamwatch’s 2019 statistics, this is an alarming increase. In 2019, only $28 million, still a substantial sum, was lost due to dating and romance scams. What statistics about financial loss don’t tell you are the non-financial consequences of catfishing, such as damage to the victim’s reputation, releasing the victim’s sexual images or personal information on the internet, and emotional abuse. According to the CyberSmile Foundation, an international organisation dedicated to providing support for victims of catfishing and online bullying, catfishing victims can suffer serious mental illnesses such as anxiety and/or depression as a result of finding out that they have been catfished, especially where they may have been emotionally invested in the perpetrator. Pretending to be someone else online might not be illegal in all circumstances but it is certainly immoral and it can have serious implications for the victim. |
| DT:
33:00 | Now in your article published in the Law Society Journal which is a fantastic article, I’d recommend it to our listeners and it really demonstrates that catfishing can have some extraordinarily tragic consequences, that it’s certainly no light-hearted or laughing matter. But in that article you’ve said that you’ve worked with a number of victims of catfishing before making a report to police, as you say it would be an embarrassing thing to admit to, certainly is embarrassing for some people, how do you have that first interaction with a victim of catfishing? How do you assist them? |
| KP:
34:00 | I think it’s one of those cases where a lot of people, after they’ve come to realise they’re a victim of catfishing, have approached police and police haven’t been in a position to assist them. Be that due to not having the funding available, jurisdictional issues, not knowing who the perpetrator is, is the key point in catfishing. And people do approach us just to get some advice about what steps they may be able to take to assist police. As a criminal defence lawyer I can assist them in a sense where ‘a) this is what can be done can’t be done by police’ and unfortunately a lot of the times people when they come to me it’s one of those cases where it’s in the hands of the police. Sometimes people have the resources to go hire a private investigator and maybe the private investigator can provide that material to the police. That’s one of those unfortunate situations where they come in, I advise them, it’s unfortunately in the hands of police if they can’t help you they can’t. But there are certain avenues that are available to them. Not sure how successful they are, but there are avenues available. |
| DT: | And tell me a bit about what those are. |
| KP:
| They do have websites where you can report certain things, report fraud for example. I’ve been told that complaints through to, say, Instagram or Facebook to try to find the perpetrator is a dead end. It’s one of those cases where they provide guidelines and certain things that you can do, how far you go, I don’t think you go far at all. You do have the help of some government agencies. |
| DT: 35:00 | I was going to ask you actually about the platforms because of course you can’t really catfish without having a platform on which to create a fake identity. If you think about the internet in the early 2000s it wasn’t unusual to have no online presence. These days it’s kind of essential to any good fraud, in this model to have an identity on multiple social media platforms probably. I was going to ask, do the platforms have any responsibility in terms of preventing or responding to this behaviour? |
| KP:
36:00
| Well it’s one of those cases where you’ve got the social media platforms, they’ve got guidelines on how to contact them and stuff in relation to having certain content removed or having the location of a user, or the identity of that person, but I don’t think they really have a personal responsibility. If they did, how it would be managed, I don’t know. It’s one of those cases where anyone can just create an email address, create a social media account and no one will know who that real person is. |
| DT:
| You mentioned some of the government agencies that some of your clients have turned to or other victims of catfishing have turned to. The Office of the eSafety Commissioner’s one, how can the eSafety Commissioner and the powers that they have, help in a catfishing scenario? I suppose in particular takedown notices and things like that? |
| KP:
37:00
38:00 | Most common thing for victims of catfishing I believe is they don’t know who the perpetrator is, it’s a lot of guessing game there. And how those agencies are able to figure out who the perpetrators are, I’ve been told, that they go through IP addresses, they figure out if someone’s email address is linked to a certain bank account. How they do it I’m not too sure, I don’t think they have the resources for it personally. But those avenues are there to, I think mostly, help and counsel victims and to prevent certain things from happening going forward rather than being able to say, prosecute someone. TIP: We spoke a little bit about the eSafety Commissioner earlier in the episode. The eSafety Commissioner was established as an independent statutory office under the Enhancing Online Safety Act 2015 (Cth). The Act affords the Commissioner the powers to investigate complaints about cyber-bullying or non-consensual sharing of intimate images. Their main tool for responding to proven offences is in the issuing of take-down notices for the removal of cyber-bullying materials by a social media platform. Now the problem is that most social media platforms aren’t bound legally to adhere to the Commissioner’s orders, instead they’re classified as a ‘tier 1’ social media services and they participate in the eSafety scheme on a cooperative basis. The only social media services that may face civil penalties for failure to comply with the requests from the Commissioner are Facebook, Instagram and Youtube given their ‘tier 2’ social media service status. Outside of the two tiers of the scheme, the eSafety Commissioner has no prosecutorial powers at their disposal to enforce online safety rules. |
| DT:
| On the topic of prosecution, we talked about the extent to which catfishing is covered by existing criminal legislation. We talked about that, if you like, stalking offence under section 13 of the Crimes Personal Domestic Violence Act, we talked about the fraud scenario, the section 192E of the Crimes Act category, those are offences but those really depend on a requisite intention on the part of the perpetrator, don’t they? |
| KP:
39:00
| Yeah that’s right and if the perpetrator is found and they’ve got solid evidence to back that up that’s fine. I think those two pieces of legislation are sufficient from if the initial catfish catfishing leads to the stalking, leads to the fraud matters. But, intention I think, can be found easily if the perpetrator’s found. It’s always the case where, “yes I’m a victim of catfishing but who is the person that’s intentionally done this to me.” That’s the most common issue. A lot of people can be victims of catfishing, you’ve got these dating websites, Tinder those kinds of apps. You’ve been catfished but who’s the perpetrator? They have the intention, who’s the perpetrator? That’s always the difficult hurdle that they have to go by. |
| DT: | And I suppose even if a perpetrator is found, there’s a category of catfishing where it’s difficult to prove that intention to either commit fraud or to stalk or intimidate isn’t there? |
| KP:
40:00 | Yeah that’s true, their interactions could reach a point where it doesn’t reach that intentional stalking threshold if we could put it that way. They could be playing the victim but not asking for any money or any benefit that they can receive from this catfishing. So it’s one of those cases where morally it could look really bad, the interactions between the perpetrator and the victim, but their actions might not amount to those two offences that are available. |
| DT: | This is sort of the category where others have described it as an offence motivated by personal gratification. |
| KP: | Exactly. |
| DT: | Some victims of catfishing and tragically the families of some victims of catfishing who’ve taken their lives as a consequence of behaviour that they were subjected to, have suggested a discreet offence to deal with catfishing behaviour. Talk to me a little bit about some of those proposals and how workable they are. |
| KP:
41:00 | I think the argument is that if a perpetrator’s found there should be a specific law that’s passed through to charge people for catfishing. I think it’s difficult to create a piece of legislation which would satisfy the elements of what catfishing is. It’s very broad. And some of the elements as part of catfishing, in my opinion, can be caught through the two pieces of legislation that we were talking about before. But it might be the case where people might think a certain legislation is needed to prevent people from assuming an identity and speaking to other people, whether that’s considered catfishing or whether that’s immoral, I don’t know. But it’s the case where I think, a lot of academics, the courts itself, have made comments about having difficulty in suggesting a specific law just purely against catfishing. |
| DT:
42:00 | I suppose there’s almost two discrete issues for law reform to deal with, if it can be dealt with. One is the practical issue of identifying an offender and there’s been some suggestions around that as well. I think the family of one victim of catfishing in Australia suggested that social media platforms be required to verify the identity of their users for example. And then there’s kind of a second issue, the one you just referred to, where it’s difficult to describe the totality of the conduct in a sufficiently clear way to cover it by an offence. |
| KP:
43:00 | I can understand the theory behind having to verify yourself on social media. I think there are some countries in the world where if someone is born they’re given a specific number and ID number which they carry on through their whole life and those countries where you sign up to social media accounts, bank accounts and stuff like that you have to put that number in to get those accounts. That’s not something that’s available to Australia, I think that’s a story for another time but it’s difficult to suggest that social media platforms have an obligation to take personal details of people. If that’s the case maybe we won’t have catfishing who knows because people will only be in a position to create those social media accounts with true, real details that may be able to be provided to the prosecution of certain catfishings alleged to have occurred. |
| DT:
44:00 | I suppose, you know I heard about that proposal I thought about the use of social media accounts years ago during the Arab Spring by political activists for whom the anonymity of a social media account was kind of essential to protecting their identity while they organised anti-government protests. I imagine an obligation on the one hand to prevent catfishing by collecting the real identities of users on the other hand can be used for nefarious purposes as well. TIP: The Arab Spring was a series of protests against autocratic governments across the Middle-East and North Africa in the early 2010s. Most, if not all, of the pro-democratic protests and uprisings were organised by activists on platforms like Facebook and Twitter, and spread rapidly as a result of their presence on these social media platforms. The Arab Spring proves to be a real-world example of how social media can be a driving force for change, in part, due to the anonymity of the organisers. On the flipside, the anonymity of ‘catfishers’ is incredibly detrimental in identifying and prosecuting perpetrators of stalking and fraud. |
| KP:
| Oh for sure I’m against that, but that’s more a political opinion whatsoever, about whether or not you should be required to provide your details for social media purposes. Yes I think on the topic of catfishing it would no doubt assist in preventing further events occurring, but in a practical sense I don’t see that happening at all. |
| DT: | Maybe you can tell us about some of the examples of catfishing matters that have come across your desk in your time in practise whether the perpetrator was located in those matters and if they were, if there was a prosecution. |
| KP: 45:00
46:00
| A few years ago a young lady that I spoke to had difficulty with dealing with the police. She had her suspicions about who this person is. She was of the opinion that the perpetrator of the catfishing was a friend of a friend or someone she upset earlier. And it was a case where she came to get advice about how could I assist in terms of explaining the process of what she could go through. Long story short, she told the police officer she had the concern she thought it was this person and kindly asked if a police officer could go and say hello to this person. Not to charge them or anything, not to impose any apprehended violence orders, just the case say hello and go, “oh we’ve heard that someone’s been,” they didn’t say catfishing but “someone’s been harassing this person, we have suspicions it might be you we thought were just give you a heads up if it is you, if you could just stop it and if it continues further there might be further investigations”. Lo and behold it stopped. But that was the case where she had her suspicions and she took the appropriate, I think the only avenue available, to stop that from happening. TIP: Surprisingly, many incidences of catfishing occur by someone who is known to, or even close to, the victim. It only takes a quick Google search to really understand how common this behaviour truly is among people known to one another. Later in the episode, we’ll talk about the case of Renae Marsden, who was catfished by her best friend for 18 months. |
| DT: | Have you seen any cases where a prosecution’s been brought? |
| KP: 47:00
48:00 | I was acting for a client who was under investigation for police for allegedly taking money out of certain people’s bank accounts and putting them in. They were under investigation because he was moving money. The interesting story about this was he was a victim of catfishing where he met some lady online from Thailand or Vietnam or whatsoever and he wanted her to come visit him in Australia. So he sent her some money and then this, we never know we never knew if it was a woman or someone conning him, catfishing him essentially, but this woman essentially said “Oh I feel bad, I’ll give you your money back, give me your bank details and I’ll send it back”. So she apparently sent more money than she was meant to and then asked him if he could return her some of that money to a different bank account in Australia. And then, they were romantically in love, however I can’t remember the chat platform, but essentially it got to a point where she was telling him she’s having difficulty moving money from one account to the other and asked him if he could do it himself physically. Cards were sent to his house, so he was just moving money, not taking any cut of it but just moving money from one account to the other. And it came to the attention of the police that this person in Thailand or wherever was actually using someone else’s bank account and getting that money transferred to the other person’s account. And my client who was under investigation by police was going to be charged with recklessly dealing with proceeds of crime. |
| DT:
| Wow. And so how does that work in that scenario? Because your client believed he was doing a favour for his girlfriend, I suppose, but the person who was actually dealing with those proceeds of crime using your client as an instrument can’t be identified. |
| KP: 49:00
| Yeah exactly. The police were going to charge him and it got to a point where after hearing my client’s side of the story, something that we thought we should disclose to the place early on to prevent him from getting charged, extremely embarrassing for him. But that story seemed so ridiculous it seemed plausible that something like this could happen. And he was a victim of catfishing and he was speaking to her for over a year or two. He had no reason to think that the transferring of money for this lady overseas who has bank accounts in Australia, he didn’t conceive at all that he was doing something illegal. So, he was under investigation by police for being a victim of catfishing. |
| DT: 50:00 | Wow, I mean it just, it shows another kind of deleterious consequence of catfishing but it also raises a question, at least for me, because in that case the catfish wasn’t trying to obtain a financial advantage from your client, I presume they were trying to launder money or something. |
| KP: | That was the assumption. |
| DT: | Does that affect the ability of either section 13 or section 192E in responding to that kind of conduct? In circumstances where your client is not really, they’re not seeking to obtain a financial advantage from your client? |
| KP:
51:00
| What they were possibly going to charge him with was recklessly deal with proceeds of crime which is a little different to the piece of legislation we mentioned before but essentially being a victim of catfishing had led him to be an instrument of a different crime that he wasn’t aware of because he genuinely believed that this person in Southeast Asia was real, and genuinely believed that just transferring of money was something that he could do for her because she was overseas and didn’t have access to attend an Australian bank. TIP: While in the example that Kent has just given the catfish wasn’t trying to obtain a financial advantage, there are of course, many instances of catfishing where this is the case. In the case of R v Lancaster [2018], a Canberra woman pleaded guilty to 10 offences of fraud, after she created an elaborate fake profile on a dating website called ‘Plenty of Fish’. She also contacted men through other social media sites, like Facebook and Snapchat. She befriended about 10 men online, and concocted stories such as being diagnosed with cancer, needing to give up her job to look after her parents, her bank accounts being frozen…the list goes on. The victims paid her money, thinking they were performing deeds of charity to a person who was unwell, or otherwise down on their luck, but obviously they didn’t know the truth. We’ll leave a link to the case in our show notes. |
| DT: 52:00 | And on the topic of that difficulty in identifying the perpetrator of catfishing I imagine there’s issues both in terms of, if you like, technological issues, the use of technology to mask someone’s identity. But also jurisdictional issues, if that person is based overseas? |
| KP:
53:00
| It’s a case where there’s a lot of technology available for people to mask their identity online. The use of say VPN comes to mind, in a sense where someone can pretend to be in the United States but they’re actually in Australia or vice versa. The use of that technology which is very commonly used these days and is readily available, I could safely say is used by most perpetrators of catfishing. It’s a protection that they’ll use to hide their identity. In terms of the jurisdictional difficulties, I did see someone a few years ago who was having issues with someone after they were accusing them of not being who they are. And it got to a point where it was found out later that this person was actually overseas. She goes to police, they can’t do anything, it’s not a state issue. She goes to the AFP, they go “we don’t have the resources to do it.” No one’s going to extradite someone over a catfishing incident. Resources aren’t there, it just practically it just doesn’t make sense. But a lot of the time catfishing perpetrators are actually overseas. They’re on these forums and speaking to people in different countries and whatnot and the whole thing about whether there would be a piece of legislation able to prosecute people overseas and say, New South Wales or Australia – no. And I think it’s a very big hurdle that they have to cross in terms of the jurisdictional issues. |
| DT: | Are there any currently reported cases or published cases or authorities concerning catfishing? |
| KP: 54:00 | I’m not sure of any authorities but the coronial inquests of Renea Marsden were, her honour’s findings at that coronial inquest I think gave a big picture about how things could go so wrong or how catfishing can occur over a number of months or years, and the effects it can have on one psychological mind if I can put it that way. |
| DT: | Can you tell me a bit more about the inquest and Renea Marsden’s case? |
| KP:
55:00 | It was a case where her friend was portraying to Ms Marsden of a certain person in a correctional centre and her friend was sending messages with Ms Marden pretending to be this, I think his name was Brayden or something like that. Long story short, the perpetrator ended the relationship via text message after a number of years and Ms Marsden committed suicide. And that’s how the coronial inquest started. I understand that no formal charges were laid against her friend or best friend and part of the coronial inquest was that the best friend was given immunity to give evidence about the whole situation at hand. |
| DT:
56:00 | I think it’s the commonly held opinion though that even if she had not been given immunity there probably wouldn’t have been an offence that covered that conduct. And I think the magistrate in the inquest said that if it had been done with an intent to cause the consequences that it ultimately had, perhaps the community might expect catfishing to be the subject of a specific offence. TIP: The Deputy State Coroner Magistrate Elaine Truscott in her coronial inquest into Marsden’s death said that there is no specific offence in NSW for the conduct which led to Marsden’s death. Her Honour observed that “where ‘catfishing’ is without threat or intimidation and is not for monetary gain, then the conduct appears to be committed with the intent to coerce and control someone.” The issue precipitated by such a limitation in the legislation is that although such conduct might cause the recipient mental and or physical harm, it doesn’t satisfy the criteria for necessary intent if it “falls outside the parameters of a known State criminal offence.” The coronial inquest is a difficult but interesting read – we’ll leave a link to this in our show notes for any listeners who are interested. Since Renae’s death, Ms Marsden’s family have been lobbying for change to the legislation to address the shortcomings in the law when it comes to catfishing. |
| KP:
57:00 | That’s I think the conclusion that her Honour came to. She made specific findings about, yes catfishing occurred, the best friend denied the catfishing essentially in evidence of the inquest. I think it was something along the lines of her and Renae created this fictional person together. But her Honour found findings about whether that was credible or not. I think she mentions she lied quite a bit in those findings. She makes recommendations to a certain government group and I think she’s made comments after about it’s difficult to create a specific legislation that creates a special type of legislation completely against catfishing. |
| DT:
58:00 | We’ve talked today about catfishing that’s driven by desire for financial gain, or a desire to harass or intimidate, or stalk or even the kind of more difficult category that’s just under personal gratification and doesn’t neatly fit into those offences we were discussing earlier. But of course catfishing is also sometimes pursued for far more sinister ends. In 2017 Federal Parliament passed the Criminal Code Amendment (Protecting Minors Online) Bill which was maybe more commonly known as Carly’s Law and that was motivated by the murder of teenager Carly Ryan in 2007 by a man who befriended her after posing online as a teenage musician. That offence carries a maximum sentence of 10 years for those who misrepresent their age online in a bid to procure sexual acts from a child. Kent, how does catfishing change, or how do the dynamics around catfishing change when the victim is a child? |
| KP:
| I personally think the only difference is that the victim in this sense is under the age of 16 or 18. I think Carly’s Law has assisted the rights of children, if you could put it that way. Situation where adults may be in a better state of mind to not fall victim of catfishing, Carly’s Law I think protects the interests of children who may not have the education or been taught about the risks of speaking to people online. |
| DT: 59:00 | I suppose the reverse is often also the case and this can be an issue in schools and it’s a vexed issue for lawmakers and those who practise criminal law; is that often catfishing can be, as it was in Renae Marsden’s case, both committed by and committed against children. Where a minor is committing an offence that might fall under section 13 or 192E, how does that change the dynamic from a criminal law perspective? |
| KP:
1:00:00
| One would think that the ramifications would be the same if a minor’s catfishing another minor. How police would act on it or the prosecution or whatsoever, how they would prosecute a minor going up against another minor, there’s probably some other avenues that are available. In dealing with minors and catfishing and whatnot and, or catfishing in general, I do think education, ensuring that people are well aware of the risks of going on social media and talking to new people, that is probably a more effective way in dealing with possible future victims of catfishing rather than providing a certain law and saying “hey if you catfish someone this is what’s going to happen to you”. I do think education’s very important just so members of the public, especially the younger generation who are going through the ‘social media craze’ if I could put it that way, I think the education point is very important. |
| DT:
| I’m glad you mentioned education, it’s certainly something that the eSafety Commissioner has spoken about before as well about the importance of preventing crime online rather than just responding to it. Especially where deterrence is concerned. For those of our listeners who might be advising people who are experiencing or at risk of experiencing catfishing, maybe some of our listeners themselves would like to know: what tips would you give to avoid catfishing online? |
| KP: 1:01:00
1:02:00 | If it’s too good to be true it’s probably not true. I think these days when people are exchanging details for someone they’ve met online, it’s probably safer to exchange your other social media accounts rather than your personal number. What I found common with victims of catfishing is in hindsight they could see it but at the time it was very difficult to understand because they’re hearing things that they want to hear from the perpetrators. They’re getting that affection, that friendship. I think just the education aspect about “hey you’ve met someone online, you don’t know who they are until you literally meet them in person.” And a lot of people might not know they’ve been a victim of catfishing. Might be the case where they’re talking to someone who they really like and they’ve just lost interest. And let’s say for example a guy is talking to a girl and he just lost interest and maybe he’d never know that that girl was actually some other person catfishing him. It’s one of those situations where unfortunately when it does get to the extreme that’s when catfishing could become very dangerous because of the detrimental effects it can have on people. |
| DT: | If it’s too good to be true it probably isn’t true. That’s a good thing to remember not only for catfishing but for many other legal issues as well. Kent, thanks so much for joining me today on Hearsay. |
| KP: | Awesome. Thank you. |
| DT:
1:03:00
| You’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guests today Kent Park and Judge Paul Conlon SC for coming on the show. Now if you liked this episode because of its criminal law content, well we’ve got more criminal law episodes for you. Try listening to my interview with Thomas Spohr about mental illness and its impact throughout the criminal justice process, or our episode on sentencing with Michael Vo and Matthew McAuliffe. If you’re more interested in the technology side though, try my interview with Reece Corbett-Wilkins about responding to data breaches and other cyber incidents. Now if you’re an Australian legal practitioner, as you know, you can claim 1 continuing professional development point for listening to this episode. CPD points are self-assessed, but we suggest that this episode constitutes an activity in the substantive law field. If you’ve claimed 5 or more points from our Hearsay already this CPD year, you may need to access our multimedia e-learning content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your CPD points on the Hearsay platform. The Hearsay team is Zahra Wilson, Kirti Kumar, Araceli Robledo and me, David Turner. Nicola Cosgrove is the skipper of the Hearsay yacht. We’re proudly supported by Assured Legal Solutions, making complex simple. Remember to visit us at htlp.com.au for more episodes, summary papers, infographics, quizzes and more. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening and we’ll see you next time. |
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