Only more rights will protect women on the internet

On 8 March 2022, the Commission published its proposal for a directive on combating violence against women and domestic violence. Under the context of the EU Gender Equality Strategy 2020-2025, this EU legislative proposal aims to close gaps in the protection and access to justice across the EU fulfilling international standards.

This proposal is relevant for EDRi due to specific forms of cyberviolence that this Directive aims to address. On one hand, this Directive will criminalise specific digital activities, notably, non-consensual sharing of intimated and manipulated material, cyber-stalking, cyber harassment, and cyber incitement to violence or hatred based on victim’s sex or gender by means of information and communication technologies. On the other hand, based on those new crimes, the Directive regulates “measures to remove certain online material” which overlaps directly with the Digital Services Act and European content moderation rules.

EDRi welcomes the proposal’s intention to effectively combat online gender-based violence through a specific Directive. However, EDRi is concerned with the specific focus on the criminalisation of online activities rather than addressing structural issues and root causes of gender-based violence. Furthermore, the Directive lacks a meaningful comprehension of how social media business models amplify violent gender-based violent content.

Fights against online gender-based violence do not have to undermine fundamental rights online.

EDRi recommends the following approach:

• Ensuring legal specificity: Criminal law shall be concrete and not vague. Thus, those new online crimes need to meet quality requirements to justify the infringement on fundamental rights that would entail their enforcement. Particularly relevant is the new crime of “cyber incitement to violence or hatred”.This criminalisation of digital speech should be understood as an exception. That means that the Directive should include enough safeguards to fulfil human rights standards to limit freedom of expression on the internet. International human rights law and soft law instruments such as the United Nations Rabat plan of action standards should be included into this crime.
• Proportionate removal process: This Directive should consider the overlap with the recently approved Digital Services Act. Given the scope of this Directive, the removal of online content not only relies on online platforms but also on private chats such as WhatsApp (encrypted) or Telegram (not encrypted) groups. This poses a key concern for enforceability and encryption.Law enforcement agencies would not be allowed to remove content from those encrypted intermediaries which might be a reason for some Member States to justify attempts to undermine encryption at a national level. This should not be permitted. Encryption is not only a key element to protect women and girls’ privacy in the online sphere but also an enabler to empower and protect groups at risk, specifically sexual and gender rights activists who are targets of online violence.Additionally, privacy works as a shield to protect freedom of expression online, particularly when it comes to breaking taboos of sexuality and heteronormativity, experimenting with gender identity, and enabling safety for women and queer persons affected by discrimination. The European Parliament should ensure that Member States will not undermine end-to-end encryption services from intermediary services providers.
• Linking the business model with gender-based violent content: Policymakers should consider actively involving very large online platforms to address structural solutions to harmful and violent gendered content online. This Directive should consider the results of risk assessment in the DSA and their role to ensure victims’ rights when it comes to preventing and repairing non-consensual intimate material, cyber-harassment and other forms of online cyber violence.