Introduction

On 3rd December 2024, the European Court of Human Rights (ECtHR) published its judgment in the case of M.Ș.D v. Romania 28935/21. The case concerns a young woman targeted by an ex-partner who disseminated her private photographs online and posted her number to an escort service without her consent. This article will examine the judgment of the Court and its potential impact on future cases of online violence, particularly against women targeted specifically on the basis of their sex. It will also highlight the AIRE Centre third-party intervention (TPI) which stressed the importance of addressing the discriminatory aspect to online violence, including discriminatory motives resulting in an ineffective investigation. This case arrives in the context of an almost decade long rise in cyberviolence targeted against women, because they are women, demonstrated by other ECtHR judgements and efforts by the Council of Europe to mainstream the issue. A key example of this is the Committee of Experts on combating technology-facilitated violence against women and girls which held its first meeting on 1^st of October 2024 in Strasbourg. 

Facts of the case

The applicant first met V.C.A on Facebook in 2016 when she was 18 and he 20 (Para 5). The two exchanged online messages together with intimate photographs of each other and engaged in a brief romantic relationship which ended around the middle of October 2016 (Para 6). On 21 October 2016, V.C.A created several fake Facebook accounts by using the identities of the applicant’s friends to disseminate her intimate photographs to her brother, uncle, and some of her brother's close friends (Para 7). When the applicant asked him to stop, he posted the same intimate photographs with her name and phone number on websites advertising escort services. He informed her he had no intention of stopping (Para 8). As a result of this, the applicant received numerous telephone calls from unknown people soliciting sexual services (Para 8). He continued to post intimate photographs of her on websites advertising escort services until 21 November 2016 before stopping at the end of that month (Para 9).

The AIRE Centre’s role

In its third-party intervention to the Court, the AIRE Centre submitted that acts of cyberviolence fall within the scope of Article 8 ECHR and are sufficiently serious to require a criminal-law response by domestic authorities. It further highlighted that states have an obligation to conduct effective investigations into acts of cyberviolence, including the dissemination of intimate photographs without consent. To be effective this must include considering whether discriminatory motives or prejudice based on an individual’s characteristics were a factor in the state’s failure to investigate.

The arguments in the intervention built on some of the established case law of the court on the issue of cyberviolence - as well as other key cases on gender-based violence and domestic violence. For example, Volodina v. Russia (No. 2), concerning the non-consensual publication of intimate photographs and the creation of fake social media profiles impersonating victims. In that case, the Court found a violation of Article 8 ECHR on the basis that, among other things, the state failed to establish a domestic legal framework capable of protecting against all forms of domestic violence and gender-based violence, including one that is capable of effectively investigating acts of cyberviolence.  

The AIRE Centre also stressed that GREVIO, the independent group responsible for overseeing the implementation of the Istanbul Convention, stated the scope of the Istanbul Convention includes digital and online manifestations of gender-based violence against women and girls. The intervention further invited the Court to consider the relevant provisions of international law in accordance with a state's obligations under Article 53 ECHR. This includes CEDAW General Recommendation No. 35, which explicitly includes gender-based violence against women in “technology media settings” within the scope of the CEDAW Convention.

Outcome

The Court found that the state’s failure to put in place an adequate criminal legal framework which protected against specific acts of online violence together with the reluctance to conduct an expeditious and thorough criminal investigation amounted to a failure to discharge positive obligations under Article 8 ECHR. The Court identified a series of failings on the part of the state, namely the lack of impartiality on the part of the prosecutor’s office and the disdain generally displayed by the prosecutor's office and the demeaning and revictimization effect it had on victims involved in intimate relationships (Para 147). The investigation also failed to take into account the public interests at stake and ignored the dangerous nature of VCA’s actions and the psychological suffering of the applicant. 

The Court held there was no need to examine the discrimination complaint in relation to Article 14. It seems to be a missed opportunity to examine the case under Article 14 and explicitly recognise the gendered nature of the violence and harassment. And, as mentioned by the AIRE Centre in their TPI the Court should ascertain whether the failure to conduct an effective investigation had been prompted by discriminatory motives or by prejudice based on an individual’s personal characteristics. 

The wider problem

There is evidence to suggest cyberviolence is inherently gendered, and while it can affect everyone, it disproportionately impacts women, girls, and people who identify as women. The report “Toxic Twitter” from Amnesty International revealed that 25% of individuals polled across eight countries had received threats, including of sexual violence, physical pain, incitement to suicide and death towards them and their family on twitter. According to the EU Agency for Fundamental Rights’ survey on violence against women taken in 2014, 14% of women in the EU have experienced stalking in the form of offensive or threatening communications since the age of 15. Another report commissioned by Women’s Aid shows that 45% of domestic violence victims reported experiencing some form of abuse online during their relationship and 48% reported experiencing harassment or abuse online from their ex-partner once they had left the relationship. An additional 38% revealed they had been stalked online by their ex-partner once they had left the relationship.

Online spaces are becoming more hostile as the internet rapidly evolves and becomes increasingly intertwined with all aspects of life. And the European Convention on Human Rights, as a living instrument (per Letsas, 2012) must be interpreted in light of the new and different ways in which technology facilitates violence and grants access to victims to cause harm from a distance. With the 2022 arrest in Romania of self-proclaimed “misogynist influencer”, for rape and human trafficking charges, we can see a landscape emerging where technology is used to harm or coerce women and girls online, actions which are subsequently normalised for young men. This context more generally means we see a change with the way technology is used to harm, coerce, or harass and the crucial need for robust national law which prohibits cyberviolence and protects victims. The case of M.Ș.D. v. Romania is one example - but it must force us and the CoE to engage in broader conversations about how experiences online are gendered and what can be done to prevent and protect against cyberviolence. The targeted online violence against a young woman and her sexuality by an ex-partner falls squarely within definitions of discrimination prescribed by both the Istanbul Convention and the Convention on the Elimination of Discrimination Against Women (GREVIO General Recommendations). 

While the Court found a violation of Article 8 as a result of the inadequate criminal legal framework put in place by the authorities and the failure to effectively investigate the allegations, the Court held there was no need to examine separately the admissibility and merits of the complaint under Article 14  because the allegations were closely connected to the applicant’s complaints under Article 8.  In the context of both the Istanbul Convention and the Convention on Elimination of Discrimination Against Women, this reflects  a missed opportunity to address victims who suffer treatment that is so clearly discriminatory against their personal characteristics. 

An approach to reduce the problem

There will be new and unforeseen ways in which people, predominantly women, experience cyberviolence.  States must recognise that obligations to prevent, protect, investigate, prosecute, and punish are equally important in relation to online harms. Technology companies have the tools to make this difference, but it is the state’s obligation under the Convention to enforce these changes. In a meeting in January 2025 the Committee of Experts on Combating Technology-Facilitated Violence Against Women and Girls held an exchange with representatives of technology companies on their responsibilities in this space as well as policies to combat technology facilitated violence against women and girls. The Committee heard from Ms. Southworth, Head of Women’s Safety at META and Mrs. Walden, Global Head of Human Rights at Google represented their companies in the discussion of several issues relating to the use of technology in targeted violence against women. These discussions referenced numerous ideas including: mechanisms ensuring that deleted content can be used as evidence in criminal proceedings, the use of hashtag technology to prevent the re upload of harmful content- in particular non-consensual intimate images, and the need to prioritise protection of individual victims when responding to reports of technology facilitated violence. In fact, this is increasingly a priority area for the Council of Europe, there is currently a public consultation on a draft Council of Europe recommendation on accountability for technology facilitated violence against women and girls. This recommendation will provide non-binding guidance for member states on enhancing legal, institutional, and regulatory responses to technology facilitated violence against women and girls.

While the cooperation of these companies is essential, and the proposition of such mechanisms may make a positive change to the current digital landscape, meaningful change must come from the states in charge of protecting human rights and the courts charged with enforcing those rights. There is a real need for a mix of approaches to tackle this issue, including litigation, advocacy and awareness raising and engagement with relevant companies– with the ultimate goal of protecting the fundamental rights of all individuals. This is a complex and evolving phenomenon and requires an approach from various directions- and high-level stakeholders. Protecting these individuals without addressing the discriminatory aspect of these particular acts is not enough. Part of this strategy is the need to seize opportunities to consider the discriminatory aspect of cyberviolence and the potential motives behind inadequate or absent investigations.  States must prevent, protect, investigate, prosecute and punish online harms to the extent they would with those committed outside of a digital landscape.