Parliament is debating a new law that will criminalise cyberstalking and cyberbullying. Anyone convicted of these new crimes is looking at a maximum of 5 years in prison.

Cyberstalking happens when someone attempts to cause harm to someone else by contacting them over some device, or causes their computer or device to do something, or uses their victim’s device to trace what they’re doing or where they’ve been. ‘Harm’ could be physical or mental, or it could be that the perpetrator has done things to make their victim harm themselves.

Cyberbullying also requires the test of wanting to harm someone physically or mentally and the term is used when to cause that harm the perpetrator either threatens their victim or uses abusive or offensive words against them or uses the computer to do commit abusive or offensive acts against them.

You will have read enough stories, and maybe have yourself been a victim of these as yet unlegislated crimes, to know these laws are needed. It shouldn’t be an excuse for perpetrators not to realise they are harming someone because they are causing the pain a room, a town, or a country away from their victim.

I support the law. I don’t think anyone should feel entitled to bully or stalk anyone else. And children and vulnerable people are the first victims of these crimes and they deserve all the protection they can be given.

But I’ve also looked at how the law risks being used to falsely accuse people of bullying or stalking when they’re actually doing their jobs. Bullying and stalking are terms often used by a certain category of people which, for ease of reference, includes Glenn Bedingfield, to indict Daphne Caruana Galizia’s work or to justify asexual revenge porn against her. You will know what I mean if you can still recall that vicious, but anonymous, website called addressed, without any ambiguity, at Daphne.

I think the drafters of this new law may have also been concerned that wrongdoers might use this to falsely accuse people they perceive as their enemies of bullying or stalking. That’s because in the provision criminalising cyberstalking, the draft law says that anyone accused of cyberstalking can say in their defence that they were acting in the normal course of a lawful business, trade, profession or enterprise; or for the purpose of engaging in discussion or communication with respect to public affairs.

The first defence (acting in the normal course of a business) is obvious. If a bank is chasing you because you are late paying your mortgage that is not cyberbullying however disturbed you might feel by the pressure their email to you is causing you. Of course, there are limits. If the bank tells you they’ll break your legs if you don’t pay by Monday, that would cross some sort of line. Within that line, it is fair for the bank to send you an email with bad news.

The second defence (engaging in discussion with respect to public affairs) feels to me like a defence for journalists. It is par for the course that I send people emails they would rather not receive. I’ve asked some pretty annoying questions to people, some that would have given them cause for concern. Once I sent an email to Yorgen Fenech asking him if he was in cahoots with one of the people charged with killing Daphne Caruana Galizia. He didn’t like that. He asked his UK lawyers to sue me for more than I will earn in 100 lifetimes.

If this anti-cyberstalking law was in place he could have claimed I sent him an email with questions he found offensive and that he believed were intended to cause him harm, mental harm at least, if not to push him to cause himself physical harm as well.

The law as drafted would allow me to defend myself from a charge of cyberstalking by saying my questions to him were intended to “engage in discussion with respect to public affairs”.

Here’s where it gets strange. The draft does not allow for the defence of “engaging in discussion with respect to public affairs” in cases of cyberbullying (as opposed to cyberstalking).

If it remains that way one Yorgen Fenech, to mention a random, entirely incidental example, could produce a folder of printouts of articles I wrote about him (I am under the impression he got his lawyers to count them which at their hourly rate must have cost him a infinitesimal portion of his fortune) and say that I have misused my computer in order to write material that is abusive in his regard and that causes him offence. And that I intended that material to cause him (mental) harm or to cause him to physically harm himself.

He’s likely to add this article to that pile.

If he did that the law as drafted does not provide for the public affairs defence from a charge of cyberbullying that is being made available if one is accused of cyberstalking.

As it stands, the draft risks opening a new vehicle for strategic legal action to cause a chilling effect on journalists. Careful what you write because if some public figure struggles to convince a court that you have damaged their reputation in a libel court, would now find it easier to convince a court that you wrote something that would make them harm themselves.

Consider that people in public life – say Joseph and Michelle Muscat, to name two entirely random public figures – might resort to label reporting on their conduct, any satire or comedy at their expense, critical commentary, cartoons, anything they would rather anyone else did not say or write or draw or perform and accuse the author of using computers or the internet with the intention of causing them mental harm.

Button up that coat. This feels like it could have a chilling effect.