The conduct cannot be defined without criminalising ordinary speech

The argument

Opponents of a cyberbullying offence begin with the drafting problem. Bullying is a pattern of social cruelty rather than a discrete act: mockery, exclusion, nicknames, rumour, screenshots passed around, jokes at someone's expense. Stated in the language of the criminal law, most of that is insult and gossip, which is lawful between adults and has to remain so if criticism, satire and argument are to be possible at all. Opponents argue that nobody has produced a definition that captures the cruelty without also capturing speech the law should not touch. The difficulty is said to be structural rather than a matter of better wording. An offence defined by the effect on the victim makes liability depend on how robust the recipient is, so identical messages are criminal or lawful according to who received them. An offence defined by repetition catches a group of people each posting once, none of whom knew what the others were doing, and an offence defined by intent to distress covers much ordinary political and personal argument, where causing discomfort is the point. Opponents hold that a provision loose enough to work would be applied selectively, and that the people prosecuted under it would be chosen by whoever found their speech objectionable. They also argue that the gap it would fill is narrower than it appears. Threats, stalking, harassment and sharing intimate images without consent are already offences and already apply online, so the new law would address only conduct that is unkind but currently lawful. Opponents argue this is the wrong boundary for the criminal law to move, because the chilling effect would fall on everyone who speaks publicly while the serious cases were already covered, and because conduct that is merely cruel has always been left to other kinds of response.

Premises

Counter-arguments

Proponents reply that the argument treats drafting difficulty as impossibility, when the law routinely defines offences by a course of conduct that a reasonable person would find oppressive, and courts apply that standard without criminalising satire. The claim that the serious cases are already covered is said to understate how the existing offences work in practice, since each was written for an identified perpetrator pursuing a named victim and fits poorly where dozens of accounts target one child. On the chilling effect, proponents argue that the speech supposedly at risk is sustained targeted abuse of an individual, that no one has a strong interest in protecting it, and that the current position chills the victim's participation instead.

Rejecting the premises

[Rejecting P1] The law routinely defines offences by a course of conduct a reasonable person would find oppressive, and courts apply that standard without criminalising satire or criticism. [Rejecting P2] Definitional difficulty is not impossibility, and the problem of many accounts targeting one person is met in other contexts by rules on joint conduct and on persistent targeting. [Rejecting P3] Existing offences were written for an identified perpetrator pursuing a named victim and fit poorly where dozens of accounts act against one child, so the overlap is smaller than claimed. [Rejecting C] Treating the speech at risk as ordinary conversation mischaracterises it, since what would be caught is sustained targeted abuse of an individual, and leaving it lawful chills the victim's participation instead.