EU Parliament’s position on Directive combatting gender-based violence a step in the right direction, with some misses on protecting privacy

Last week, the European Parliament agreed to their final position on the directive on combatting violence against women and domestic violence. While the overall outcome is a positive step towards safeguarding the rights of women and LGBTQ+ people online, the EU failed once again to account for encryption as a key tool to protect the privacy of threatened groups.

By EDRi · July 18, 2023

On Wednesday, 12 July, the European Parliament reached an agreement on their final position regarding the Directive on combatting violence against women and domestic violence. The final position of the Parliament succeeded in shifting the narrative from the original criminalisation approach to combat gender-based violence (including cybercrimes) to a more holistic approach that includes victims’ perspectives.

Notably, the Directive now recognises online platforms as crucial players in preventing and removing illegal content. The overall outcome represents a positive step towards safeguarding women and LGBTQ+ rights on the internet, even though the Parliament didn’t heed to some of the provisions that digital rights groups advocated for to strengthen this Directive.

Less criminalisation, more prevention

One of EDRi’s main concerns was the excessive focus on the criminalisation of online activities in the Directive. We have already seen the disproportionate impact that (data-driven) law enforcement activities can have on racialised and marginalised communities. For this reason, our main priority was to ensure legal specificity in the proposed cyber crimes. Specifically, EDRi pushed to include definitions and international human rights law (IHRL) standards for both “non-consensual sharing of intimate or manipulated material” and “cyber incitement to violence and hatred.” Although the Parliament included a weak definition of “intimate,” it explicitly mentioned the United Nations Rabat plan of action aligning cyber incitement of hatred with IHRL standards. These improvements will create a better balance between the integrity of women and LGTBIQ+ individuals, and online freedom of expression.

The EU Parliament’s position also acknowledges the role of the “dominant online platform” in the dissemination of public incitement to violence and gender-based violent content. This is crucial – the business model of these platforms, based on micro-targeting advertising, shapes the type of content available on the internet and the accessibility of online information. In order to seek user engagement, online platforms prioritise content that may lead to violence or affect women’s and girls’ integrity.

To tackle gender-based violent content, a specific article to support victims of cyber violence was included. This article mandates Member States to assist victims in the communication with relevant online intermediary services and in the preservation and documentation of evidence. On top of that, Member States shall also facilitate stakeholder cooperation to develop and implement measures to tackle cyber violence. This could accelerate the engagement of digital rights organisations in the fight against online gender-based violence.

No room for encryption

We’re still concerned about the lack of measures to protect the privacy of women, girls and LGTBI+ individuals. Along with 45 other organisations, we pushed to include a provision to promote and protect encryption in online contexts. To enforce the provisions laid out by the Directive, particularly to remove content at national level, could entail the introduction of backdoors on encrypted communications under the excuse of “remotion of violent content”. Due to this risk, EDRi proposed a rule to prevent Member States from undermining encryption. However, this was rejected in the Parliament and we lost an opportunity to stress the importance of anonymity and privacy to survivors of gender-based violence (e.g. to communicate with SOS or Help hotlines, protect sensitive content, etc).

What’s next?

Now that both the EU Parliament and the Council of the European Union have decided on their respective final texts, the next stage is the inter-institutional negotiations. These negotiations with the Council, which will determine the final legislation, already started on Thursday, 13 July under the Spanish presidency.

Frances Fitzgerald (EPP, Ireland), one of the rapporteurs of the file, declared that the trilogues are likely to be concluded under the Spanish presidency. However, the political situation in Spain may impact negotiations, as general elections will take place in Spain on July 23rd, potentially changing the political landscape within the Council.