As the impacts of COVID-19 continue to grow more extreme, we are forced to rely on our phones and computers as our primary source of communication. Therefore, whether you are talking to friends, family, or colleagues, it is essential to understand what you can and cannot say online and your words’ legal impact.

Many believe that the virtual nature of online and mobile phone communication deems what we say as unimportant and legally irrelevant; this is simply untrue. The law takes a clear stance on anti-social communication through what the legislation calls carriage services. Carriage services are defined in the Telecommunications Act 1997 as services that carry communication by means of guided and/or unguided electromagnetic energy. Such services include phone calls and texts, social media messaging such as Facebook and Instagram, emails, and even work and video game communication platforms such as Microsoft Teams and Discord.

The Criminal Code Act 1995 outlines three things you must not do when communicating on your phone or online. The first is section 474.15(1), using a carriage service to make a threat to kill. Under this section, you must not intentionally threaten to kill the person you are talking to or another third person. 

The second is section 474.15(2), using a carriage service to make a threat to cause serious harm. Under this offence, you must not threaten to seriously harm the person you are talking to or another person. It is essential to know that the courts do not need to believe that a person receiving a threat feared it would be carried out. All that is important is that the person who made the threat intended it to cause fear that harm might be done. 

Finally, a person must not use a carriage service to menace, harass or cause offence, section 474.17. Under this section, the court will look to see if a reasonable person would consider your actions to be menacing, harassing or offensive. The most common offences under this section may include:

• Messaging or calling someone excessively.
• Sending someone messages that may be considered threatening.
• Sending someone unsolicited images that make them feel unsafe or uncomfortable.

Therefore, next time you become upset with a family member or colleague who you cannot see face to face, consider how the messages you send them are framed. Consider the tone and content of the message and remember that not everyone will interpret what you are saying exactly how you meant it to be interpreted. Also, remember that you can act if something that has been sent to you makes you feel genuine fear or discomfort.  

NB: Nicholas Fisher is an intern at law under the supervision of Katherine Hawes, the Principal Solicitor of Digital Age Lawyers.