Editor: One of the earliest arguments I heard in favour of the Cybercrime Bill 2016 was from the Minister of Information, when in a press conference he lauded it as being about protecting children. Children are cyberbullied, it was argued. The truth is that, at that time, there was absolutely no provision in the bill which specifically dealt with the cyberbullying of children. During the last two select committee meetings to which I was invited, an effort was made to split the offence into two: one for cyberbullying of a child or vulnerable (which includes a disabled) and another for cyberbullying of a person other than a child or vulnerable.{{more}}

I wish to focus on and expand on my proposals for this area, as first expressed in Select Committee meetings and in my recent letter to Reporters Without Borders (RSF). They are twofold: 1. Cyberbullying should not be criminalized, but should be addressed, where necessary, as a tort in a civil court and 2. Preventative measures should be emphasized rather than punitive.

One of the greatest dangers of criminalizing cyberbullying is the fact that we can easily catch and create criminals among children, because let’s face it, children cyberbully children. In SVG, the age of criminal responsibility is eight years old and a child can be detained as a juvenile offender by about age 16 (although we have no juvenile detention centre to house them). In the revised bill, the select committee and its invitees (NOT ME – I DISAGREE WITH CRIMINALIZING CYBERBULLYING) decided to raise the penalties for the cyberbullying of a child or vulnerable to $150,000 or three years in prison, or both at summary conviction and $250,000 or five years or both at conviction on indictment. This is higher than for the cyberbullying of a person other than a child or vulnerable; in other words, an adult who is not a vulnerable. Of course, this means that in a case of a child who is convicted of cyberbullying another child, he or she, on the face of it, already faces a greater maximum penalty than an adult cyberbullying an adult. Think about that.

Children sometimes say terrible things without considering the consequences, words that may hurt, insult, shame, criticize etc. Is criminalizing them the answer? I think not. Remember a hand was not lifted, no blood was shed by an act committed by the child. Furthermore, even the truth spoken can be seen as cyberbullying under the vague, subjective and legally uncertain language used in the definition of cyberbullying. Will we criminalize a child for repeating the truth in cyberspace? In my letter to the RSF I said, “I have proposed instead social intervention to address the behaviour, involving schools’ administrations, parents and students in anti-bullying programs, victim-proof programs, education on tolerance and responsible use of cyberspace and such like.” I sincerely believe this is a better approach as a preventative measure, which will offer true protection of children, helping them to avoid bullying behaviour, as well as to not become victims of bullying. I have recommended models such as Tom Thelen’s Victim-proof program in the USA.

Do you know that in Trinidad & Tobago’s Cybercrimes Bill 2016 they have a separate section dealing with child offenders? And do you know the fines are significantly smaller (based on age – 16 years and over and under 16). More importantly, do you know their bill gives the court the option of applying other measures which include not criminalizing the child? It says, “In determining the sentence of a child offender… In any case involving a child offender, the Court may-

(a) place the offender in the care of a fit person;

(b) make an order for counselling or any other rehabilitative intervention or treatment or for psychological evaluation and resultant assistance;

(c) make an order for community service pursuant to the Community Service Orders

(d) order that no conviction be recorded;

(e) order that the proceedings be sealed and not divulged without an order of the Court; and

(f) make such other orders as it deems fit.”

These opportunities are geared towards rehabilitating children and teaching them how not to be bullies and I find the measures (community service) to be more proportionate for children who have engaged in cyberbullying. The order that no conviction be recorded is proportionate, since it does not criminalize a youth or child over words/communication online that may very well be the truth. Other jurisdictions deal with cyberbullying among children in a strictly non-criminal manner. They address most serious cases from a civil court standpoint. It is clear to me that the claim that the Cyberbcrime Bill 2016 is about protection of children is an emotional argument which leads to hasty adjustments of the section, without giving due reflection to the implications and significance for the very children themselves. Since children cannot pay those hefty fines, parents will have to do it. And when parents cannot pay the fines, the 16 year old will be imprisoned. Where will you detain the offender? It begs the question-who really is this criminal cyberbullying offence meant to deal with? I am not fooled that it is about protecting children. It seems to be more about satisfying vendetta and revenge among some thin-skinned adults, even in high office, who need to learn tolerance!

Anesia O. Baptiste