Cyberstalking and cyberbullying are being introduced as specific offences in the Criminal Code, in terms of a bill which started being debated in parliament on Wednesday.

The bill is being piloted by Justice Minister Edward Zammit Lewis.

It provides that it shall be a crime for anyone, with the intention of causing fear or  physical or mental harm to:

• Stalk another person through the use of a computer or other electronic communication device;
• Cause an unauthorised computer function in a computer owned or used by another person
• Trace another person’s use of the internet or other electronic communication.

Persons found guilty of such offences shall be liable to imprisonment for a term of between one and five years or to a fine not exceeding €30,000, or to both.

The punishment will be increased by one degree when the crime is committed against an underage person or a vulnerable person and where the offence is committed by two or more persons acting together. 

In 2017 then President Marie-Louise Coleiro Preca said the fight against cyberbullying should not only include the strengthening of existing legislation but also the enactment of a specific law.

“We must do more to ensure that online bullying is... acknowledged as a major offence.

“To be able to do this, we must strengthen existing legislation and also consider a specific law that highlights the crimes of cyberbullying,” she said.

MEP Alex Agius Saliba wrote in Times of Malta in April last year that according to research in previous years, around 10 per cent of children in Malta aged 11  reported being cyberbullied.

Renee Laiviera, Commissioner of the National Commission for the Promotion of Equality, wrote in Times of Malta in 2019 that women faced daily violence online.

Balancing freedom of expression with protection against abuse

In introducing the debate, Zammit Lewis said that people obviously had a right to express themselves on the internet and anywhere else. But criminal sanctions were needed against cyberstalking and cyberbullying because of the negative impact they had on people, even driving some to suicide. 

The minister went over the provisions of the bill, explaining that the crimes of cyberbullying and cyberstalking, in terms of the bill, can be caused through threats, intimidation, abuse or offensive words directed at the victim through the use of a computer or other electronic communication device.

"This government is taking cyberbullying and cyberstalking very seriously," he stressed, adding that the law will not apply to activities carried out as part of legal investigations, the enforcement of the criminal law and the protection and collection of public revenue.

Anyone accused of cyberstalking will be able to argue, in court, that they did so without malicious intent in the normal course of a lawful business or for the purpose of engaging in discussion or communication with respect to public affairs. The latter provision, he explained, would protect journalists from such charges. 

On cyberbullying, he said the crime would apply when the accused ought to have known that his actions would cause fear or physical or mental harm to another person endangering his/her safety or that of another person. 

Opposition: Structures needed to tackle cyberbullying, cyberstalking

Nationalist MP David Agius said the Opposition agreed with this bill in principle, especially since some 900 cases of cyberbullying were reported last year.

This bill formed a good basis on which to build further. Clearly, legal structures were needed to ensure that there was proper enforcement of the provisions of this new law. Only in this way could one ensure, as much as possible, that children, the elderly and all other members of the elderly, were safe when they used the internet. 

The authorities, in particular, needed the tools and the human resources to fight such crime, not just IT experts, but child psychologists and forensics experts. Such support was needed not just within the police, but also the education sector. 

Far too often victims complained that nothing was done after they reported abuse. 

Abuses, Agius said, were wide-ranging including sexting, incitement, hatred, blackmail, harassment, racism and homophobia. They were often committed by people hiding behind fake accounts. Their crimes constituted an attack on the country's values and caused untold harm, especially to children. 

Public awareness, therefore, needed to be raised, with people also being made aware of the punishment they became liable to when they committed these crimes. 

Proper studies were also needed. How did the 900 cases reported in a year stem from? What action was taken about them, especially to protect the victims? What such action prompt? Were there repeat offences? 

While seeking to prevent abuse and protect the victims when it was committed, society also needed to try to rehabilitate the perpetrators, Agius said. Once convicted persons were imprisoned, what would happen then?

Society, Agius, said, also needed to better protect itself against cyberattacks against people who were not computer literate and who were sometimes tricked and defrauded. Here too, legislation and resources needed to be continually updated. 

Meanwhile, Nationalist MP Therese Comodini Cachia warned on the need for a proper balance between freedom of information and abuse. Such a well-intentioned law should not be used to stifle public debate. 

She observed that while it will be a defence for anyone accused of cyberstalking to say he was acting for the purpose of engaging in discussion or communication with respect to public affairs, this did not apply if one was accused of cyber harassment.

One should not see a return of criminal libel under the guise of cyberstalking or cyberbullying, she said.  Provisions, she said, were also needed against state-sponsored or party-supported trolling.