The criminalising of cyberbullying and stalking is positive. But the draft presented in parliament opens the way to the criminalising of investigative journalism and endangers free speech. It could be the government did not have this in mind but one never knows when dealing with a government that actively weaponised trolls to dehumanise journalists.
Like that road to hell which is paved with good intentions, many laws appear to be well-intentioned but their effects threaten to disproportionately interfere with human rights.
The effect of the proposed legislation is one which opens the gate to reintroducing criminal libel and provide yet another procedure that can abusively SLAPP those who participate in public debate.
Until this draft proposal came about, the common legal understanding was that harassment, stalking and causing fear in others are technologically neutral offences already recognised in the Criminal Code. The offence of harassment and causing fear was formally recognised as a criminal offence in 2005 and that of stalking in 2014.
The beef in this proposed legislation is not about protecting victims of bullying and stalking but in making sure that we do not increase victims of abusive procedures which chill public debate. I choose to assume that the government had good intentions for this law but, having recognised that there is a chilling effect on public debate, I cannot fail to raise it.
The real question is how do we ensure that parliament does not legislate for the creation of yet another procedure which can easily be used to silence journalists, activists and those who question the status quo while still protect victims of cyberbullying?
In its current shape, the law threatens editors, journalists, bloggers and everyone who participates in public debate with prosecution for having in some way intimidated or offended a person.
I would expect Konrad Mizzi, Keith Schembri and Joseph Muscat and every politician who carries heavy allegations of corruption or of covering up abuse of power to feel apprehensive when they continue to receive questions from journalists which strongly show that the journalist is on to them.
The proposed legislation opens the gate to reintroducing criminal libel- Therese Comodini Cachia
Maybe I hope that, at least, these people have a shred of conscience left in them to feel anxious about being caught out and fear prosecution. But, surely, that does not make these politicians victims of bullying nor does it make those journalists bullies.
The legislative proposal becomes obfuscated in doubts on its intended effect when one considers that the government has wielded a well-oiled spindle that has spun and wound up the masses against journalists, activists and everyone who questions.
During the parliamentary debate, Justice Minister Edward Zammit Lewis recognised that this proposal could have chilling effects on freedom of expression and declared that these effects are remedied. However, a reading of the proposed drafts shows several shortcomings in this respect.
In its current draft, the proposed law is flawed. Even if one compares it to a foreign law much similar to it, the government has chosen to include the defence of engaging in discussion or communication with respect to public affairs against the charge of cyberstalking but fails to include also the defence of engaging in political activities and of being a person whose business is the publication of news or current affairs material.
The proposed offence of cyberbullying incorporates no suchlike defence. If I express an opinion that Robert Abela is an accomplice in theft from the public coffers since he has so far refused to provide information on any severance package given to Muscat, Mizzi, Justyne Caruana and Rosianne Cutajar after each resigned from office, and I post this on my social media, do I become a cyberbully if any one of them finds this offensive? Would a journalist who raises these questions also become a cyberbully?
Sure, they could sue us for libel, a civil procedure, but will they also now be given the weapon of asking the police to charge us with cyberbullying? Hence, will they institute proceedings much like those of criminal libel? If that were the case, I or the journalist might freely choose not to question those severance packages and never know if taxpayers’ monies were used to fund these persons after their resignation.
Before enacting these new offences, we need to include defences that guarantee they will not be used to chill public debate on matters of public interest. Doing otherwise would only undermine the very freedom a committee of experts has been appointed to protect and would only create other types of victims.