The United States Supreme Court is to decide whether making threats in Facebook posts is a crime.

Pennsylvania resident Anthony Ellis was convicted of threatening his estranged wife and served three years in a federal prison. In one post, he wrote: “If only I knew what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder”.

Ellis’s lawyer in the Supreme Court proceedings has made submissions comparing the material to Eminem’s lyrics in “Kim” and “Kill You”, where he raps about killing his wife and his mother, citing free speech concerns in support of his case.

The Court will have to decide whether prosecutors are required to prove that a person actually intended to threaten someone, or alternatively, whether a reasonable person would perceive that the person did so in their online post.

The position in Australia

The Commonwealth Criminal Code embraces both the subjective and objective positions above. It is an offence under s 474.17 of the Code to use a carriage service “in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive”. Section 474.15 makes it an offence to threaten to cause serious harm or threaten to kill, but a person will only be found guilty under this section if the Crown can prove that the person intended that the recipient (or another person) became fearful as a result of the threat. Section 474.15 carries heavier penalties than s 474.17, which explains the lower threshold of guilt for the latter offence.

Liability under the Criminal Code is only made out where interstate communication has taken place. For offences within NSW, State law applies.

The position in NSW

The common law provides that where a person fears immediate unlawful violence, an assault is made out even if no physical contact (or “battery”) takes place (Stephens v Myers (1830) 172 ER 735). Assault by telephone is also possible under the common law, including where the harm suffered is not physical but a recognised psychiatric illness (R v Burstow; R v Ireland [1998] AC 147). Therefore, it follows that under the common law, a threatening Facebook post is capable of constituting a criminal assault, as long as the victim fears immediate unlawful violence as a result of the post, or suffers a psychiatric injury as a result of it.

Stalking and intimidation legislation also exists under s 13 of the Crimes (Domestic and Personal Violence) Act 2007. This offence is proved if the Crown can establish that a person stalked or intimidated another person with the intention of inducing fear of physical or mental harm in the other person. They are guilty if they know that their stalking or intimidation is likely to induce fear in the other person. This offence blurs the boundaries between subjective and objective intention: the Crown must prove the accused’s state of mind, but this involves a consideration of whether the accused was apprised of the likely outcome of their behaviour. The definition of intimidation expressly includes approaches made over the telephone, by text message, email and “other technologically assisted means”. Therefore, there is clearly scope for a threat made over Facebook to be characterised as an offence under this legislation


The United States decision involves drawing a line between subjective intention and objective appraisal of behaviour. The Court’s decision risks oppressing the First Amendment right to free speech. The position in Australia is not so clear-cut. Under our law, a determination of what the accused actually intended is required. Subjective intention is a central principle of criminal liability, notwithstanding its erosion in certain areas. Objective appraisals such as whether behaviour is likely to induce fear, or whether a person’s fear is reasonable, do make the Crown’s job easier, but when it comes to assault, threats and intimidation, subjective intention is still a central component of criminal liability.

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Image credit: United States Supreme Court

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