Zarizana Abdul Aziz

Due Diligence Project

About the author: Zarizana Abdul Aziz is a human rights lawyer and is the Director of the Due Diligence Project and co-developed the Due Diligence Framework on State Accountability for Eliminating Violence against Women.

Key words: due dilligence, online violence against women, consent, human rights, state, internet intermediaries, international law

Summary:

This paper explores what is online violence against women; what can be done to stem and ultimately eliminate it; and whose responsibility is it to do so. It does this by building upon and furthering the issues identified in two research projects, namely the research on State accountability to eliminate violence against women by the Due Diligence Project (DDP)[1]and the research on corporate and state remedies for dealing with online violence against women by the Association for Progressive Communications (APC).[2]

The paper further looks at the roles played by both states and by private corporations and the legislative and non-legislative changes that are needed to ensure that women are able to exercise their right to freedom of expression without the fear of harassment and violence. It recommends that innovations in other fields of online jurisprudence could provide a template for addressing gender-based violence online.

Main concepts:

• Online violence against women:  are acts of gender-based violence ‘committed, abetted or aggravated’ in part or fully by the use of information and communication technologies, such as  cyber stalking; accessing or disseminating a woman’s private data (through hacking);  identity theft or  doxxing.

• Due diligence:  International law mandates States to exercise due diligence to promote, protect and fulfill human rights. This includes the obligation to prevent violations, protect victims/survivors of human rights abuses, prosecute violations, punish perpetrators and provide redress and reparation for victims/survivors. This also includes the obligation to remove impunity and preventing human rights abuses by non-state actors. Non-State includes transnational[3] and national corporations operating within the jurisdiction of the State.

• Internet intermediaries bring together or facilitate transactions between third parties on the internet. They give access to, host, transmit and index content, products and services originated by third parties on the internet or provide internet‐based services to third parties.

• Intermediary liability in the context of this paper refers to the legal liability of internet intermediaries for content contributed by, or activities carried out by, third parties. The liability approach this paper pursues is  “notice and takedown” system, i.e. systems that require intermediaries to act expeditiously to remove content which it is deemed to be unlawful once they have been given notice of the content to ensure that their sites do not serve as vehicles for violating material.  Such take down orders should be issued by a judicial authority, be clear and unambiguous, and follow due process.

Key facts:

• Online violence against women presents specific challenges in gauging which data or images constitute violence. What is actionable violence and what is not is gauged by intent to harm, content, imminence of harm (credibility), extent of the harm and context.

• ICT provides a fertile terrain that amplifies reach of transmission. This aggravates the harm to the exercise and enjoyment of human rights and freedoms, particularly the right to privacy or respect for private life caused by the communication of the violating material compared to more traditional media.

• Patriarchy and prevailing interpretations of moral norms, culture and religion places women as the primary bearers of honour and tradition.  Women who establish cyber-friendships or relationships may be deemed to have transgressed culturally appropriate behaviour as are women who engage in sexting, exchanging or who consent to intimate partners taking suggestive images, albeit for private purposes.

• In relation to violence against women, consent is key to differentiating lawful from unlawful and harmful behaviour. Consent in an online context is often complicated by the exact act to which the consent, if any, relates. Because of this, defining consent is crucial in online violence and must be addressed in any relevant mechanism.

• The enhanced anonymity offered by digital and virtual spaces, through encryption and privacy protocols, provides particular challenges in identifying perpetrators of online violence against women and magnifies impunity.

• It is simplistic to view anonymity as a threat that needs to be removed under all circumstances. As anonymity  offers privacy to victims/survivors (whose privacy is often violated by perpetrators) and allows them to re-enter online spaces or to report violence. The anonymity provided by the internet is also beneficial to whistle-blowers, human rights defenders or to those outside current dominant groups, such as LGBTQIA people.

Introduction

Increased prevalence of online violence against women, the lack of effective measures to prevent and contain it, and the ensuing impunity must be addressed as part of the struggle to eliminate all forms of gender-based violence. Information and communications technology is no longer the privilege of select members of society but in many instances has overtaken more conventional forms of communications to become the main form of communication in commercial dealings, personal, political and social interaction.

The internet, once a liberating space is also increasingly, a space of unmitigated violence, particularly violence targeting women. While it is beyond the scope of this paper to explore why women are especially targeted within the online spaces, suffice to say that online violence against women is part of the continuum of violence against women that is committed offline. It reflects and parallels the reality of offline violence against women with the same causes and similar consequences. Like offline violence against women, internet-related violence against women is often in the form of sexual violence such as threats of rape, non-consensual dissemination of intimate data and images, dissemination of rape recordings, cyber stalking, sexual harassment and exploitation of women and girls.[4]

Another group of persons susceptible to online violence is the LGBTIQ community. In so far as its form, frequency and severity can be compared to approximate the form, frequency and severity of online violence against women, this paper is equally applicable to addressing and eliminating violence against LGBTIQ persons.

Freedom of expression and access to information are key enabling rights to a range of human rights. Still, the free exchange of and access to information does not equate to unregulated violence. Freedom of expression or access to information cannot be bought at the expense of women’s security and safety. In fact, removing violence against women from the digital and online platforms has the net effect of promoting and strengthening freedom of expression as it creates an environment that allows more individuals, especially sections of society who face most discrimination in other public spaces, to participate in these media. ^[5]

Initiatives by States and internet intermediaries to confront online violence have proven sufficiently ineffective to stem online violence, protect women, bring the perpetrators to account and provide satisfactory redress for victims/survivors. In her September 2016 report, the United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, Dubravka Šimonović, identified online violence as a new challenge and one of her priority issues.

“While the use of information and communications technology has contributed to the empowerment of women and girls, its use has also generated online violence. … [T]here is a need to examine this recent phenomenon, and the applicability of national laws to it, and to make recommendations for States and non-State actors to fight online violence against women and girls while respecting freedom of expression and the prohibition of incitement to violence and hatred, in accordance with article 20 of the International Covenant on Civil and Political Rights.”[6]

This paper explores what is online violence against women; what can be done to stem and ultimately eliminate it; and whose responsibility is it to do so. It does this by building upon and furthering the issues identified in two research projects, namely the research on State accountability to eliminate violence against women by the Due Diligence Project (DDP)[7] and the research on corporate and state remedies for dealing with online violence against women by the Association for Progressive Communications (APC).[8]

• Outline of paper

The paper outlines women experiences and reality in accessing justice, identifies and describes the issues, actors and stakeholders, the role of the State as well as private sector actors, existing mechanisms, application of international human rights law and good or promising practices in this context. It concludes with recommendations for the way forward.

Part I will look at violence against women in general and the ability of technology to amplify some of the specifics of violence against women. Technology provides the platform capable of masking perpetrators as well as allowing perpetrators to commit violence at increased speed and rate. The capacity of technology to store data and images further complicates the provision of remedies.

Part II looks at actors and stakeholders. The primary actor is the perpetrator, namely the originator (author) of the online violence. Layers of encryption allow the perpetrator to remain anonymous. Further, any post can be distributed or accessed online, drawing secondary transmitters who unwittingly or knowingly amplify the harm to the victim/survivor.

Platform providers and intermediaries often deny liability or even responsibility to ensure that their sites do not serve as vehicles for violating material. This complicates victims/survivors obtaining remedies that require the cooperation of these intermediaries.

Part III dissects what constitutes infringement. How do we differentiate between legitimate exercise of freedom of expression and violence? The issue of expression in the face of harm has been dealt with in other areas that may prove helpful in defining infringement in violence against women.

Part IV looks at the application of international law and issues of accountability for online violence, exploring international law’s contribution toward resolving online violence. This paper will also interrogate whether it is appropriate and feasible to hold internet intermediaries accountable for failure to prevent, respond to and provide remedy for online violence against women committed on their platforms.

As internet intermediaries can only be held accountable if they have a positive obligation in this regard, the paper will explore whether it is possible to imbue internet intermediaries with a positive obligation to exercise due diligence in these instances. Issues such as anonymity and extra-territoriality complicates States’ prosecuting or holding perpetrators or third party liable.  Still, States are not exempt from discharging their obligations on the basis that the wrong is difficult to investigate or prosecute. 

Part IV also interrogates the role of the State to exercise due diligence to prevent online violence, protect victims/survivors, investigate and prosecute incidences of online violence, punish the perpetrators and provide redress to victims/survivors.

Part V interrogates what measures States have undertaken in addressing online violence and whether these actions, policies, laws and programmes are effective. While many States have attempted to criminalize online violence, its enforcement has proven seriously problematic due to lack of mechanisms, procedures and expertise/skills. As the violating material is posted on a third party platform, often sited beyond the territorial limits and jurisdiction of the State concerned, providing remedies and reparation to the victim/survivor has proven especially difficult. Takedown notices, removal of links and disclosure of identity can only be undertaken by third parties who may or may not be liable for the violating material having been posted on their platforms.

Finally, Part VI explores the way forward and outlines recommendations and principles to address online violence.

A framework for State and internet intermediaries obligation to eliminate violence against women is annexed to the end of the paper.

https://www.apc.org/sites/default/files/DueDiligenceAndAccountabilityForOnlineVAW.pdf

http://www.duediligenceproject.org/

Извор: WUNRN – 26.10.2017