Of course, it is human nature to be curious. While technology allows us to satisfy inquiring minds, it has also opened up our lives in ways that we couldn’t imagine a decade ago. People can contact us even when we don’t want to be contacted.

Even corporations do it! It’s now commonplace for employers to seek out information on applicants or employees through social media and use it to decide whether you are good fit for their company. Why wouldn’t they? Your internet usage reveals much about who you are: your likes, dislikes, political leanings, religious views, sexual preferences, whether you have an active social life, the places you like to go, and even how frequently you enjoy a nice drop of red or a frothy ale.

Looking up social media profiles has become something of a societal norm – whether for social or professional screening purposes. But there is a difference between harmless curiosity and obsessive (potentially unlawful) cyber stalking. Unlike stalking in the physical sense, the rapid evolution of technology has given those with nefarious intentions the opportunity and luxury to monitor your every thought, feeling and movement from the comfort of their couch.

What protection do privacy settings offer?

In most cases, privacy settings are a great way to protect yourself.

Facebook lets you to tailor your audience for each update, to decide which pictures you want to share with your friends and which ones you want to share publicly. You can also block someone from seeing or searching for your profile entirely.

The thing is, most of our internet usage is not restricted to one social media platform so limited privacy settings can only go so far. Every time you use any form of online technology you leave a trail of digital breadcrumbs. It doesn’t take much for someone to collect these crumbs and piece together a complete picture of your most personal and identifiable information.

Social media is a cyber stalker’s dream

If we dig a little deeper, it’s almost as though certain Facebook features have been created specifically to facilitate and encourage undetected observation by others.

1. Getting notifications every time you do something 

Facebook’s ‘close friends’ function is a perfect example. Others can add you as a ‘close friend’ which means they are notified the minute that you like or comment on a photo, update your status or check in somewhere. The scary part is that there is no way to know who has added you to their ‘close friends’ list and, therefore, who receives real-time notifications about where you are or what you are doing.

2. Viewing every photo you have ever liked (even if you are not friends)

Another feature sure to be over utilised by stalking aficionados is Facebook ‘search.’ Regardless of whether or not you are Facebook friends, it is possible to search for and gain access to the history of all photos someone has liked or commented on simply by typing the following into the search bar:

• photos liked by [insert name]; or
• photos commented on by [insert name]; or
• pages liked by [insert name].

3. Stalking your friends and networks

Even if someone cannot view your profile page, they can go to the pages of your best friends (the nine people on your profile page that Facebook considers you are closest to).

Depending on your friend’s privacy settings, anyone can learn more about you by viewing their photos or your posts on their page.

Are you are being cyberstalked?

Sometimes the signs can be subtle and easy to overlook. The key thing to remember is that it may not necessarily be somebody you know who is tracking your online activity – it could be a complete stranger who has become fixated with you.

Warning signs may include situations where:

• Someone keeps track of when you are online. They may regularly initiate contact via Google Hangouts, Facebook chat or they may follow you around Reddit forums they did not participate in before you met them. If the same person seems to be turning up wherever you go online, it is likely that they know your schedule and it is not a mere coincidence.

• You may receive emails or messages with increasing frequency. When you don’t reply, the person might send another message that covers different topics.

• Someone may persistently engage with every social media update you post, tag you in comments or other posts or direct their comments to you personally. You may feel singled out because that person always responds to what you have posted in a way that makes you feel uncomfortable.

Persistent online behaviour can quickly morph into a real world stalking scenario.

If someone you know is cyberstalking you, their behaviour may become obvious during face-to-face interactions. It may be that:

• A particularly persistent work colleague reveals personal information about you during
  a conversation – information that you did not tell them yourself. It could be something innocuous like what you did over the weekend, the names of your close friends or whether you are dating anyone. Pay attention to these types of warning signs as they could indicate this person has a deeper underlying fixation with you.

• An acquaintance continually shows up at the same places as you. For example, while you are out at lunch or Friday night drinks with friends. This could be a coincidence but if it happens more than a few times, it could mean that they are using social media or other technology to learn where you will be and to follow you there.

The key to understanding unlawful cyberstalking is that the unwanted behaviour must be repeated.

The Australian Institute of Criminology defines cyberstalking as any persistent online behaviour that instils apprehension and fear.

This might include situations where:

• You are harassed by abusive emails or instant messages
• You are singled out and repeatedly tagged in posts or have comments directed at you
• Someone impersonates you or spreads rumours about you that are untrue (for example, by hacking your social media or email accounts or sending abusive messages to your family or friends)
• Someone threatens to share or actually shares intimate or embarrassing pictures or videos of you online
• Someone repeatedly and persistently contacts you across various social media or other online platforms

If the someone’s online behaviour makes you feel scared or intimidated then you are being cyberstalked.

What does the law say?

Under current Australian law, stalking (including cyberstalking), is a serious offence in all states and territories and carries a maximum penalty is 5 years in jail or a fine of $5000.

Each jurisdiction treats stalking in their criminal legislation differently, but essentially you are being stalked when you receive repeated attention that intimidates or frightens you. In some states and territories, it can still be considered an offence even where you are not actually intimidated or frightened by the stalking behaviour.

In NSW, under the Crimes (Domestic and Personal Violence) Act 2007, it is a crime for someone who you are (or were) in a relationship with to stalk or intimidate you with the intention of causing you to fear physical or mental harm. If the police decide to prosecute, it is not necessary to prove that you actually feared physical or mental harm.

Stalking can include someone making numerous unwanted phone calls, sending you threatening or abusive text messages or emails, contacting you through the internet, social media, computers and surveillance devices with the intention of causing you mental or physical harm.

Commonwealth legislation criminalises cyber-harassment but does not provide for a general offence of harassment. The Commonwealth Criminal Code makes it an offence to ‘use a carriage service to menace, harass or cause offence’ and to ‘use a carriage service to make a threat’. This captures harassment through the internet, social media, and telephone. The maximum penalty is three years imprisonment or a fine of $19,800.

Time for legislative reform? 

Use of technology-facilitated violence is a developing area of law.

The offence of cyberstalking currently falls within the existing offence of stalking in state and territory legislation and cyber-harassment provisions under the Commonwealth Criminal Code.

However, given the distinctive nature of cyberstalking and the highly damaging impact it can have on victims, as well as the ease in which technology allows perpetrators to harass and intimidate others with relative impunity, it is perhaps time for legislative reform.

Misuse of social media and technology is likely to see a steady increase in insidious cases of technology-facilitated stalking and violence. If left unchecked, this behaviour has the potential to flow on to other serious offences.

In the case of victims fleeing domestic violence, the ability of abusers to track the physical location of victims (and to act on that information) with ease, can and does result in serious and potentially life-threatening scenarios. It is only a matter of time before social media and other technology is exploited far more extensively.

To address the issue, urgent harmonisation of disparate state and territory stalking provisions, together with tougher penalties and more active enforcement is essential.

A uniform and stand-alone cyberstalking criminal offence may go some way towards the better regulation of intimidating, damaging and unwanted online activity.

What can you do if you are being cyberstalked?

Collect Evidence

As a first step, record or take screenshots of any abusive, harassing or intimidating material that is directed at you. This allows you to verify your claims if it gets to the point where you need to make a complaint to the police and for them to commence an investigation.

Block

If you are being harassed on social media one of your first steps should be to block the person from all of your social media accounts.

Report

If you are being stalked, harassed or bullied through social media you can utilise the social media carrier’s ‘reporting’ function. Most carriers have a feature for reporting abusive or harassing behaviour. You can also report it to the Australian Cybercrime Online Reporting Network (ACORN).

If there is found to have been an infringement of any state or federal law, ACORN refers your matter to the relevant law enforcement agency.

Make a complaint to the police

If you have genuine fears for your safety, you should report it to the police as soon as possible. Being able to provide the police with a timeline of events and evidence such as screenshots will ensure that your complaint is taken seriously.

Make sure you have a timeline of events, and evidence such as screenshots. This will ensure that your complaint is taken seriously.

Prevention

Constantly shifting social media landscapes mean that, in many ways, it is inevitable that your personal and business information will be more accessible to the world at large.

You can, however, start to practise greater awareness of others’ online behaviour and your own. If someone’s interactions with you seem strange or repetitive, don’t assume it is harmless because it happened online. Just because something starts online, does not mean it will end there.

While some legislative protections and deterrents are in place, the only real way to protect yourself is to exercise constant vigilance and to be mindful of the information you choose to share.

Further Information

If you or someone you know has been a victim of cyberstalking contact:

• Australian Cybercrime Online Reporting Network (ACORN) to make a report.

If it is in breach of Australian law, your incident will be referred to the relevant government agencies or law enforcement for further investigation.

• Local police assistance line: 131444
• National Counselling Helpline: 1800 737 732 (for assistance and practical strategies on how to cope with the ongoing effects of online harassment).

Legal Resources:

• Smartsafe Legal Guide for Apprehended Domestic Violence Orders
• Smartsafe Legal Guide to Surveillance Legislation in NSW
• Smartsafe Legal Guides to Relevant Criminal Offences 
• Directory of National Legal Services
• Make a Technology Safety Plan

Download the Smartsafe app to record evidence of family violence safely:

• Smartsafe app

Have you, or someone you know, been a victim of cyberstalking? What was your experience and how did you go about handling it? Let us know in the comments!

These are all valid questions and, in a perfect world, they would be resolved before anyone we care about falls off their perch. But it’s a morbid subject, meaning that most of us don’t like thinking about it let alone raising it for discussion – and by the time we do have the answers it’s too late to ask why.

So what can you do if you find yourself in a situation where your expectations have not been met? What are your options if your inheritance is smaller than expected or, worse still, there is no mention of yours truly in the Will?

The good news? You do have options. The bad news? These vary from state to state across Australia, so your options invariably depend on the state or territory where your family member lived when they died.

The Situation

Let’s say your father (we’ll call him John) lived in South Australia and passed away recently. All of a sudden, you become aware that you been left out of his Will, or the inheritance that he left you is significantly less than what you expected.

Effectively you have three choices:

1. Try to have the Will declared invalid;
2. Try to convince all interested parties to enter into a Deed of Family Arrangement; or
3. Make a claim for provision under the Inheritance (Family Provision) Act 1972 (SA).

Having A Will Declared Invalid

This is the avenue to pursue if you have serious concerns about the validity of a Will.

For example, if you have concerns:

• about John’s mental capacity at the time of signing his Will (this is known as lack of testamentary capacity);
• that John may have been forced or coerced into signing the Will;
• that there is a more recent Will other than the one presented; or
• about the Will being fraudulent then this is the option you would take.

In these situations, the only way to contest the Will is to ask a court determine its validity.

If you have doubts about the validity of a Will it is critical to flag your concerns as early as possible, as time is of the essence.

To have a court determine the validity of John’s Will, your first port of call is to contact the solicitors for the executor and advise them of your position, let them know that you think the Will may be invalid and the reasons why. If it seems a bit scary, you can get a lawyer to do it for you.

Your next step is to lodge a caveat on the estate. What this does is ensure that you are notified before probate is granted, meaning that you have the opportunity to raise your concerns regarding the validity of John’s Will before his estate is distributed.

Once your claim has been considered, the court will make a determination regarding the validity of John’s Will.

If John’s Will is deemed to be invalid, the most recent Will that he created prior to the invalid Will comes into effect. If John has not made a previous Will then his estate will be considered intestate and his assets will be distributed in accordance with the laws of intestacy.

Entering Into A Deed Of Family Arrangement 

What about a situation where the Will is valid, but circumstances have changed so much since it was made that you believe that you should be entitled to a bigger slice of the estate?

Maybe you deserve a bigger slice of the action

Suppose that John drafted his Will 10 years ago when you were lucky to see each other once a week. However, as the years pass and John’s health deteriorates he becomes reliant on you to help him with his day-to-day living.

John’s Will does not take into consideration this significant change in circumstances but how do you go about addressing something like this?

The best option is to enter into a Deed of Family Arrangement. This is an agreement to change the terms of a deceased person’s Will. It is not exactly straight forward, however, as it requires all interested parties to come to an agreement. This means the executors, the beneficiaries and even the creditors. During a period of high stress and grief, this can be a monumental task.

If you are lucky to have a family who get-along well and can have an open dialogue where everyone agrees to the change, the Deed itself will act as an amendment to the Will.

If an agreement cannot be reached then this fails to be a viable option.

Having a family meeting

A few things to be aware of if you are considering entering into a Deed of Family Arrangement:

• The Deed does not prevent further claims being made on the estate because it does not bind those who are not a party to the agreement
• Since the Deed changes the way assets pass to beneficiaries, there is a risk that you could be hit with stamp duty, capital gains tax or other tax penalties.

Making An Inheritance Claim Under The Inheritance (Family Provision) Act 1972 (SA) For Inadequate Provision

Under the freedom of testation principle, a person is free to give their estate to anyone they wish.

In some situations, the law recognises that this can be unfair, especially if you are a dependent and suffer hardship as a result of a parent’s eccentric desire to leave all of their money or property, say, to a pet.

If you decide to pursue this avenue, you must make your claim within 6 months of the grant of probate or letters of administration.

Make a claim within 6 months

In our scenario, you must also be able to prove that John had some kind of connection with the state. It will usually be sufficient to prove that he lived or owned a house in a particular state. Where you physically live has no bearing on your ability to make a claim. The important factor in our example is that John lived in South Australia and had assets there.

To make a successful claim there are several hurdles to overcome:

• The first hurdle is to prove that you are eligible to make a claim.

You must have a specified type of relationship. As John was your father in our scenario, this will satisfy the first requirement. To make a claim you need to prove that you are either the spouse, divorced spouse, domestic partner, former domestic partner, child, step-child, grandchild, parent or sibling of the deceased person.

• The second hurdle is a favourable assessment by a court.

In assessing your claim the court will consider, among other things, the nature of your relationship with John prior to his death. This includes the extent to which John financially or otherwise supported you or the extent to which you cared for, or contributed to, his maintenance during his lifetime.

The court will want to know, for example, the details and extent that John relied on you for assistance with his day-to-day life.

• The third hurdle is your age, health and financial status.

The court looks at your age, health and financial status as well as the dynamics of your relationship with John prior to his death. All this information is weighed before the court decides whether, in all the circumstances, John failed to adequately provide for your proper maintenance, education or advancement in life in his Will.

The court takes a number of factors into consideration

If the court believes that you have been inadequately provided for, then an order of the court, as with the Deed of Family Arrangement, will act as an addendum to the Will.

The Wrap-Up

In a nutshell, as far as the law in South Australia goes, these are your options if someone leaves you out of their Will.

Obviously, the path you choose to pursue will depend on your individual circumstances but the important thing to remember is that you do have options.

*This article is based on South Australian legislation.

Have you been left out in the cold when a family member didn’t include you in their Will? Let us know your experiences in the comments below!