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For what is believed to be the first time, a trans athlete has won a protracted court battle to enable an Apprehended Personal Violence Order (APVO) to be used to combat cyberbullying, as well as physical violence and abuse.
Trans athlete targeted in cyberbullying campaign
Sadly, cyberbullying is happening more and more, despite laws aimed at protecting minors and adults from online abuse.
This particular case involved a transgender woman who was abused online for playing in a NSW country town's women's soccer team.
She had been playing community soccer in women's teams for 25 years, but in 2023 an anti-transgender campaigner began a social media campaign condemning her participation in a women's team and inviting others to join in the online campaign against her.
The posts included a photograph of the player, without naming her, describing her as a "bloke in a frock" and calling on soccer authorities to ban transgender women from women's football.
The post on X (formerly Twitter) asked local men to get behind the campaign to ban her from the team. The posts garnered 39,100 views, 116 re-tweets and 439 likes. The campaigner also posted the message on the site of anti-transgender group Binary Australia, where 190 people "liked" it. Copies were sent to various politicians and the media.
What is an Apprehended Personal Violence Order (APVO)?
In NSW, the Crimes (Domestic and Personal Violence) Act 2007 allows a court to make an Apprehended Violence Order (AVO) if they are satisfied that a person requires protection from violence, intimidation (including harassment) or stalking.
The legislation distinguishes between the two types of AVOs - an Apprehended Domestic Violence Order (ADVO) and an Apprehended Personal Violence Order (APVO).
An Apprehended Personal Violence Order is similar to an Apprehended Domestic Violence Order, except that it relates to the protection of a person where there is no domestic relationship between the parties.
Trans athlete applies for APVO due to fears for safety
The player appealed to the Local Court to issue an APVO to stop the campaigner harassing her online. She said she feared for her safety, because the posts identified her and named the town she lived in. The campaigner argued she was merely expressing her opinion on transgender people playing in women's teams.
The Local Court found that while the posts were unpleasant, they did not reach the level of harassment or severity of fear required for the court to intervene.
The player appealed to the District Court, where she won. The judge found that without intervention, the online harassment would continue and would cause fear. (Please see Blanch v Smith [2024] NSWDC 631.)
The campaigner appealed, and the Court of Appeal supported the decision to grant the APVO.
Court of Appeal finds online abuse can impact mental health
The campaigner had argued the right to free speech as implied in the constitution, but the Court of Appeal found online abuse can have damaging effects on the mental health of individuals. The appeal judges agreed that the laws on APVOs in NSW do contemplate online conduct.
The court rejected the campaigner's argument that there would need to be an intention to harass for the conduct to fall within the definition of intimidation.
The three-judge bench said it was open to the District Court judge, on the evidence before her, to conclude the posts were "transphobic belittling" and "ongoing behaviours which were objectively threatening".
The appeal judges also rejected the campaigner's free speech argument, saying protecting individuals from the "significant deleterious effects of possible intimidatory conduct, including... conduct having a political character, outweighs the minor burden imposed on the implied freedom [of political communication]."
Decision acts as precedent for victims of cyberbullying to obtain APVO against harassers
This decision could open the doors for victims of online bullying to pursue their abusers in court to obtain an APVO against the bully, even when the harassment masquerades as "political commentary" or "free speech".
Victims of abuse should get legal advice on whether they could pursue an APVO in their particular circumstances, not only to combat physical violence or threats in the real world, but also threats, abuse or intimidation directed at them on social media and in other online spaces.
Courtney Fermor
Criminal law
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
