Missing the target on cyberbullying law

An anti-cyberbullying law tabled by justice minister Edward Zammit Lewis is cleared for second-reading stage in Parliament: paving the way for its possible enactment in the coming months. 

On paper, this should be welcome news. Recent events have dramatically underscored the extent of the problem that is cyberbullying: mostly in schools, but elsewhere too. 

Nonetheless, this is an issue that should be treated with caution by our legislators.  

In its current form, the law defines ‘cyberbullying’ as any acts that are deemed “abusive or offensive” to a person, of which are “abusive or offensive towards the person” through electronic of digital devices. 

This is however imprecise; and the absence of a detailed, well-researched definition for cyberbullying can be a cause of concern in itself.  

The European Parliamentary Research Service, for example, provides a wide range of aggressions that can form part of cyberbullying, specified in part as being “usually repetitively and mostly via social media”.  

Rather than ‘offence’ – a catch-all term that can be invoked by anyone who dislikes what is said about them – the EPRS points out insults, threats and intimidation, gossip, exclusion, stalking or identity theft, as key ingredients for victimisation.  

Crucially, Facebook and other social media websites are often used for “anonymous” cyberbullying through private group chats where victims, often children, are unaware of its existence.  

As the American government’s stopbullying.gov website illustrates, private set-ups, when eventually discovered, bring the full weight of paranoia, embarrassment, and feelings of isolation on the victim.  

But by bringing ‘offence’ into a mix of criminal online behaviours, the scene could be set for a new law that allows victims to claim they have been “offended” repeatedly on internet – perhaps by memes or repeated public criticism – in a way that they claim causes them psychological harm.  

Already, this can be seen to potentially undermine the purpose, and spirit, of the new law.  

It is unclear, as yet, whether the law would punish the implied ‘right to offend’ that comes with freedom of expression: historically enshrined in the Handyside case, where the European Court of Human Rights held that the right to freedom of expression also protects expressions that ‘offend, shock or disturb’. 

This is a consideration should have been raised during last Wednesday’s debate in the House. Instead, however, we were treated to a clear-cut example of how MPs disagree over who gets to be accused of ‘online hate’ or ‘trolling’.  

Nationalist MP Therese Commodini Cachia for example told MPs how a defunct blog – Tasteyourownmedicine.com – was specifically set up to attack the journalist Daphne Caruana Galizia, back before Labour had been elected.  

At the time, Caruana Galizia’s blog had yet to become the anti-corruption powerhouse it became with the Panama Papers and the Electrogas emails leak. 

Critics – or ‘trolls’ – taken aback by Caruana Galizia’s delight in lampooning the ineptitudes of Labour candidates or their working-class flag-wavers, responded with a blog that carried tidbits about her own private life. 

In such a zero-sum game, reason and argument are the first to fly out of the window – for both sides. 

And what solution is there for private persons who are turned into social media fodder for mirth and ridicule, but who might lack the forcefulness or sophistication needed to respond? How does one get to have their say when the mockery is wilful or uninvited?  

A cyberbullying law must be careful to clearly differentiate between such kind of victimisations, and situations in which public persons with lower expectations of privacy must endure with appropriate responses.  

It cannot cast not too wide a net to capture situations of ‘offence’ generated from online memes or discussion fora – social media, unlike newspapers, operate at a frequency where gossip and shaming tend to walk hand in hand with forceful political views; that’s a risk any public person should take in their stride. 

While social media ‘haters’ get to be just that – haters, left alone to their devices – a cyberbullying law must seek to protect real victims of bullying. 

If it opens itself up to the possibility of further abuse, by clamping down on freedom of expression and allowing those who claim to be offended online, to say they are ‘cyberbullied’, that would be the reverse of the decriminalisation of libel that happened under the Media and Defamation Act.