Cyberviolence as Domestic Abuse – Human Rights Responses.
Advances in technology, although often very beneficial, can also have the potential to be used in such a way as to increase risk levels for victims of domestic abuse says Dr Ronagh McGuigg.
The COVID-19 pandemic has unquestionably served to illustrate the many ways in which technology can be used beneficially in our lives. However, during the pandemic rates of domestic abuse have risen substantially around the globe, and in recent times perpetrators of domestic violence are increasingly using technology in their abuse. For example, in research carried out by Women’s Aid, it was found that almost a third of survivors of domestic abuse surveyed had experienced the use of GPS locators or spyware on their phones or computers by a partner or ex-partner.
It was also found that for 85 per cent of respondents, the abuse which they had received online from a partner or ex-partner was part of a pattern of abuse experienced offline. Domestic abuse is a human rights issue, and importantly the increased role which technology frequently plays in such abuse is now firmly recognised in European human rights law.
Cyberviolence and the Istanbul Convention
The Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (commonly known as the Istanbul Convention) has been ratified by 35 states. A Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) constitutes one of the bodies which monitors state compliance with this treaty. Under Article 66 of the Convention, GREVIO may make ‘general recommendations’ which are authoritative statements on the obligations which states have under this instrument.
The importance of the issue of cyberviolence is demonstrated by the fact that GREVIO chose the digital dimension of violence against women as the subject of its first General Recommendation which was adopted on 20 October 2021. In this General Recommendation, GREVIO stated that,
‘Information and communication technology (ICT) has enabled the perpetration of violence against women on a scale previously unknown.’
GREVIO proceeded to comment that,
‘Gender-based violence against women perpetrated in the digital sphere has a serious impact on women’s and girls’ lives, including psychological and physical health, their livelihoods, their physical safety and their reputation’,
and made detailed recommendations to states on the measures which should be adopted in response to such abuse.
Jurisprudence of the European Court of Human Rights.
The role which cyberviolence can play in domestic abuse was first recognised by the European Court of Human Rights in 2020 in Buturugă v. Romania. In this case, the applicant had lodged complaints against her husband, alleging that she had been the victim of domestic abuse and that her husband had threatened to kill her. The couple then divorced, following which the applicant requested an electronic search of the family computer, as she alleged that her former husband had wrongfully consulted her electronic accounts and had copied her private photographs, documents and conversations. She then lodged a further complaint of breach of the confidentiality of her correspondence.
However, the prosecutor’s office discontinued the case on the basis that the behaviour of the applicant’s former husband had not been sufficiently serious to constitute a criminal offence. It also dismissed, as being out of time, the applicant’s complaint relating to the violation of the confidentiality of her correspondence. The applicant appealed to a national court which issued her with a protection order, however she alleged that the police delayed the implementation of this order and that her former husband had not complied with it.
The European Court of Human Rights held that there had been a violation of Article 3 of the European Convention on Human Rights, which is the right to be free from torture and inhuman or degrading treatment or punishment, and also a breach of Article 8, which is the right to respect for one’s private and family life.
As regards the investigation into the breach of confidentiality, the Court stressed that cyberbullying constitutes a recognised aspect of violence against women and girls, and that acts such as illicitly accessing one’s partner’s correspondence could be taken into account by national authorities when investigating cases involving domestic abuse. However, the Court stated that in this case the authorities had not considered the merits of the applicant’s criminal complaint of breach of the confidentiality of her correspondence.
The request which she had made for an electronic search of the family computer had been dismissed on the basis that any facts ascertained in this way would not be relevant to her former husband’s alleged violence and threats. Also, the national court had decided that the applicant’s complaint regarding the alleged violation of the confidentiality of her correspondence was not pertinent to the subject matter of the case. The European Court was therefore of the opinion that the applicant’s allegations relating to the use by her former husband of her electronic communications had not been examined on their merits, and that the state had failed to take into account the many forms in which domestic abuse can occur.
The issue of cyberviolence was further discussed by the European Court of Human Rights in the recent case of Volodina v Russia (No.2) in September 2021. This case involved an applicant whose former partner had repeatedly been physically violent towards her, as well as tampering with the brakes on her car and stealing her bag, mobile phones and identity documents. The applicant discovered an electronic device in the lining of her bag, which she believed was a GPS tracking device placed there by her former partner.
In addition, the applicant’s brother had informed her that her account on the Russian social media platform ‘VKontakte’ had been hacked. The invented name which she had had on her account had been replaced with her real name; photographs had been uploaded; and personal details had been added. When she attempted to log into her account the applicant found that the password had been changed. She complained to the police who then took a statement from the applicant’s brother. He said that the applicant’s former partner had admitted to him that he had hacked into her email account. At first the police declined to institute criminal proceedings, however a criminal investigation was eventually opened.
The applicant asked the investigator to seek an order which would prevent her former partner from contacting her, using the internet, or approaching members of her family, however this request was refused. The police later suspended the investigation into the fake social media profiles, and refused to open a criminal investigation regarding the tracking device. The criminal case was then closed, although it had been established that the applicant’s former partner had created fake profiles on VKontakte in her name and had published nude photographs of her without consent.
In its judgment, the European Court of Human Rights asserted that,
‘Online violence, or cyberviolence, is closely linked with offline, or “real-life”, violence and falls to be considered as another facet of the complex phenomenon of domestic violence … The States have a positive obligation to establish and apply effectively a system punishing all forms of domestic violence and to provide sufficient safeguards for the victims … The positive obligation applies to all forms of domestic violence, whether occurring offline or online.’
There had clearly been an interference with the applicant’s rights under Article 8 of the European Convention on Human Rights, due to the tracking by means of a GPS device, the creation of the fake social-media profiles and the publication of intimate photographs without her consent. The question was thus whether the authorities, once they had become aware of the interference with the applicant’s Article 8 rights, had fulfilled their obligations to take sufficient measures to stop the interference and prevent it from reoccurring.
The Court was of the view that the existing legal framework did equip the authorities with tools to prosecute the acts in question. However, the way in which the matter was handled, particularly as regards the reluctance to open a criminal case and the slow pace of the investigation, showed a failure on the part of the authorities to discharge their positive obligations under Article 8, and there had therefore been a violation of that provision.
A Welcome Recognition
The firm recognition in European human rights law that cyberviolence may constitute an aspect of domestic abuse is certainly very welcome. It is notable that UN human rights entities have also recognised the part which online abuse can play in domestic violence. For example, in 2018 the UN Special Rapporteur on violence against women, its causes and consequences, stated that online abuse may form part of a pattern of domestic violence and abuse. Essentially, it must be remembered that advances in technology, although often very beneficial, can also have the potential to be used in such a way as to increase risk levels for victims of domestic abuse, and human rights systems must respond accordingly.