Legal aspects of cyberbullying and cyberharassment

Abstract

This thesis explored the issues of cyberharassment and cyberbullying and sought to identify them in Chapter 1 and examine their positions in relation to the Maltese legal system in Chapter 2 and Chapter 3 respectively. A comparative analysis of foreign legislation relating to cyberharassment and cyberbullying, namely that of U.S. (United States) and U.K. (United Kingdom) was carried out in Chapter 4, in an effort to pinpoint the most appropriate way of combating these emerging offences. Reference was made throughout to the latest E.U. (European Union) developments in this area. The methodology used consisted of a combination of academic research from various primary and secondary sources and through empirical research taking the form of interviews, as outlined in the introduction section. The main issue troubling legislators across the board is that it is proving to be rather difficult to cope with the rapid pace of technological development, and many times even prior to a piece of legislation being enacted it would already be outdated by the emergence of a new technological device or system. In order to surpass this issue, Maltese legislators have opted to enact technologically neutral laws in which the traditional offence is criminalised and technology is merely regarded as one of the tools that could be used to commit such an old-age offence, as detailed in Chapter 2. It is evident that the traditional law on harassment contained in the Criminal Code is adequately sufficient to extend to cyberharassment. Cyberspace offers great possibilities that are unparalleled in any other environment. Yet as demonstrated through Maltese judgments, the technological aspect tends to be disregarded under the Maltese legal system and thus it has been suggested that certain reforms in the punitive nature of this law on harassment should be addressed, in terms of when technology is used as a tool to facilitate the crime, essentially resulting in an aggravation of the crime. Seeing as 'bullying' in itself is not listed as an offence under Maltese law and because it involves sensitive data pertaining to minors, this impeded and posed a limitation on the research of this thesis. But this essentially underlined and brought to light certain lacunas, highlighting the thirst for legislative and social, anti-bullying measures to be promulgated in Malta. After a comparative analysis of foreign legislation was conducted, it is conclusive that the Maltese system of enacting 'technologically neutral' laws is the most effective system to sufficiently counter-act these online offences. This is because by using this method and making use of the more general and encompassing word 'technology', misuse of any newly upcoming and innovative technology will always be covered by our law. The more specific legislation is, the harder it becomes to apply. With regards to the Budapest Convention being adapted to include cyberbullying and/or cyber- harassment as a content related offence, it has been concluded that this is not possible due to the complex nature and subjectivity of such terms.