The digital ‘face’ of violence
Digital technology has become an essential tool for our lives, yet every day we see new examples of how it undermines human rights. The internet has proven to be a safer space for the offender ti act giving, providing an easy access to the victim, in the sense that the lack of direct contact with the victim facilitates in many cases the commission of the offence, while the lack of feeling of being reported or prosecuted enhances the confidence with which the offence is committed.
Online sexual harassment,cyber stalking, cyberbullying, publishing images/video without consent, stalkerwares and spousewares, have all damaging consequences for a victim, and it is not hard to imagine the impact they have on women.
Legislative initiative to address online gender based violence – European Parliament
Following the discussion in plenary taken place on Monday 13/12, on 14/12 Members of the European Parliament, voted in favor of the report of the legislative initiative for to address online gender based violence with 513 votes in favour, 122 against and 58 abstentions. Τhe report reiterates:
‣the EU’s lack of an adequate legal framework to combat the phenomenon, and to protect and support victims. A common definition of gender-based cyberviolence is needed in criminal law, say MEPs, as are harmonised minimum and maximum penalties.
Parliament urges the Commission to criminalise gender-based cyberviolence, and calls for the Council to extend the list of ‘EU crimes’ – i.e. to officially recognise that gender-based violence is a particularly serious crime with a cross-border dimension.
As the Parliament mentions, a non-exhaustive list of actions that the legislation should address includes:
⚪recording and sharing images of sexual assault;
⚪remote control or
⚪surveillance (including spy apps);
⚪threats and calls to violence;
⚪sexist hate speech;
⚪unlawful access to messages or social media accounts;
⚪breach of the prohibitions of communication imposed by courts.
Istanbul Convention and Cyprus Legislation
With Law No. 14(IIΙ) of 2017 Istanbul Convention was ratified and incorporated in Cyprus legal legislation. Among others, in Article 34(2) the Convention asks Members States to criminalize Stalking.
To comply with the Convention, Cyprus enacted the Protection from Harassment and Stalking Law of 2021 which includes both the offence of stalking as well as stalking committed with the use of electronic means and internet taking the shape of Cyber Stalking. For these crimes, perpetrators are subject upon conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding €10.000 or to both. Read more on this Law here.
In particular the above Law on Protection from Harassment and Stalking of 2021 provides that: when a person, engages in a behaviour which constitutes stalking and cause harassment,whilst that person knows or ought to know that such behaviour causes harassment is guilty of a criminal offence, and upon conviction,such person is subject to imprisonment with a term not exceeding two (2) years or to a fine not exceeding five thousand euro (€5.000) or to both **
A behaviour deemed to constitute stalking is inter alia:
⦿monitoring the use by a person of the internet, email or any other form of electronic communication or
⦿sending material on social media which relate to the personal life of a victim or interfering with the victim’s internet posts / material ;
⦿surveillance and/or spying another person.
For now the term surveillance / spying is neither defined in the above law nor interpreted under case law. This would enable us to know whether spying personal data through (“spy apps”) falls within this offence. However interpreting the letter of the law somewhat broadly, we could state that spying through spy apps does fall within the term ‘spying’ of the above Article.
Cyber-violence – the new look of violence
This is online aggressive behaviour that may result in physical, psychological or emotional threat to the victim.
In an important, related and recent case an applicant woman complained through her application to the ECHR that the Russian authorities failed to protect her from repeated acts of cyber-violence from S. for at least three years; this included the publication of her intimate photographs without consent, impersonation through the creation of fake social-media profiles and tracking her with the use of a GPS device. She also complained that the authorities had failed to conduct an effective investigation into these acts.
Following her separation from her then partner S. , the latter started assaulting and harassing her. The failure to protect her from the acts of violence was the subject of the applicant’s first case with the European Court, Volodina v. Russia.
Other than the above, Ms Volodina suffered acts of online harassment. In June 2016 she complained to the police that S. had used her name, personal details and nude photographs of her to create fake social-media profiles, adding classmates of their son and his schoolteacher as friends. She also reported to the police her fake profiles on Instagram and on a Russian social network, the discovery of a GPS tracker device in the lining of her bag, and death threats sent to her via social media.
The authorities initially refused to go any further with the complaints, citing lack of territorial jurisdiction or lack of an offence. A criminal investigation was eventually opened in March 2018. In October 2020, the police closed the case under the statute of limitation, even though they found it established that it had been S. who had published nude photos of the applicant – found on his phone – without her consent.
No criminal investigations were opened into the discovery of a GPS tracker or death threats. The police did not investigate the online death threats at all, concluding that no offence had been committed because the threats were not “real”.
Ms Volodina relied on Article 8 (right to respect for private life), and complained that the authorities failed to protect her against repeated online violence and to effectively investigate her allegations. She criticized in particular the fact that Russian law does not explicitly target the manifestations that domestic violence can take in cyberspace, such as online stalking or impersonation.
The court reiterated that:
Firstly, the Court was satisfied that Russian law contained both civil-law mechanisms and criminal- law provisions for the protection of an individual’s private life. The authorities had thus been equipped with the legal tools to investigate the cyber-violence of which the applicant had been a victim.
Russian law did not provide victims of domestic violence with any measure of protection, such as restraining or protection orders. A newly created order to prohibit certain conduct did not offer adequate protection to victims in the applicant’s situation. Such orders only become available after sufficient evidence to charge the perpetrator had been gathered but, in the applicant’s case, the investigation against S. had not progressed beyond the stage of suspicion.
The Court found that the response of the Russian authorities to the known risk of recurrent violence had been manifestly inadequate and that, through their inaction and failure to take measures of deterrence, they had allowed S. to continue threatening, harassing and assaulting the applicant.
Lastly, the manner in which the Russian authorities had handled the investigation, in particular an initial two-year delay in opening a criminal case and the slow pace of the proceedings leading to the prosecution eventually becoming time-barred, showed that they had failed to ensure that the perpetrator of acts of cyber-violence be brought to justice. The perpetrator’s ensuing impunity had put in doubt the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyber-violence.
Just satisfaction ( article 41)
The Court held that Russia was to pay the applicant EUR 7,500 in respect of non-pecuniary damage and EUR 5,386.46 in respect of costs and expenses.
FTW concludes by stating that,
technology cannot be used to torture and destroy people who have the right and legitimate expectation of a personal life free from abuse and violence. This extreme case highlights the need for the Courts to act decisively when technology is used with great ease to destroy the very existence of human beings.
Article 4 (4) of the Protection from Harassment and Stalking Law
 Χρυσάνθου ν Αστυνομία Ποινικές Εφεσεις (138/11 και 139/11 ημερομηνίας 27 Σεπτεμβρίου 2011)
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