ANNEX TO THE RESOLUTION:

RECOMMENDATIONS TO THE COMMISSION AS TO THE CONTENT OF THE REQUESTED PROPOSAL ON COMBATING GENDER-BASED VIOLENCE: CYBERVIOLENCE

Recommendation 1 on the objective of the legislative proposal

The objective is to include in the upcoming directive on combating all forms of gender-based violence minimum rules, as a harmonised policy response, concerning the definition of the crime of gender-based cyberviolence and related sanctions, to establish measures to promote and support the action of Member States in the field of prevention of that crime and to establish measures to protect, support and ensure reparations for victims.

Additionally according to the LGBTIQ Equality Strategy 2020-2025, to include in the upcoming proposal the definition of online hate crime and hate speech when targeted at LGBTIQ people.

This proposal should not undermine any efforts to identify all forms of gender-based violence as a new area of particularly serious crime.

Recommendation 2 on the scope and definitions

The definition of gender-based cyberviolence should set out the scope, extent and gendered and intersectional nature of cyberviolence and underline that gender-based cyberviolence is part of the gender-based violence continuum.

The proposal should contain a definition based on the definitions in existing instruments, such as the Council of Europe Convention on Cybercrime or the Istanbul Convention, the definitions elaborated by the Cybercrime Convention Committee, the Commission’s Advisory Committee on Equal Opportunities for Women and Men and the United Nations Special Rapporteur on violence against women, its causes and consequences and definitions framed in the context of cybercrime or cyberviolence against children, or violence against women.

Based on existing instruments, a possible definition could be: ‘Gender-based cyberviolence is a form of gender-based violence and is any act of gender-based violence that is committed, assisted or aggravated in part or in full by the use of ICT, such as mobile phones and smartphones, the internet, social media platforms or email, against a woman because she is a woman or affects women disproportionately, or against LGBTIQ people because of their gender identity, gender expression or sex characteristics, and results in, or is likely to result in, physical, sexual, psychological or economic harm, including threats to carry out such acts, coercion or arbitrary deprivation of liberty, in public or private life’.

— which crimes?

The inclusion of the term ‘computer crime’ in Article 83(1) TFEU may also cover crimes committed against electronic communication networks or information systems or by using them, and serious forms of online gender-based violence with a cross-border dimension may fall within the scope of ‘computer crime’ within the meaning of Article 83(1) TFEU.

In addition, measures that aim to prevent gender-based cyberviolence and to assist victims could be established on the basis of Article 83(1) TFEU because they are secondary to the main objective of the legislative proposal.

The scope of the legislative proposal should cover any form of gender-based violence committed, assisted or aggravated in part or fully by the use of ICT, such as mobile phones and smartphones, the internet, social media platforms or email, against a woman because she is a woman, or affects women disproportionately or against LGBTIQ people on the grounds of gender identity, gender expression or sex characteristics.

Although it is not possible to present an exhaustive typology of the different forms of gender-based cyberviolence because it is constantly evolving and new forms are emerging, the following types should be mentioned and defined:

— cyberharassment, including cyberbullying, online sexual harassment, unsolicited receipt of sexually explicit material, mobbing and dead naming;

— cyberstalking;

— ICT-related violations of privacy, including the accessing, recording, sharing, creation and manipulation of private data or images, specifically, including image-based sexual abuse non-consensual creation or distribution of private sexual images, doxxing and identity theft;

— recording and sharing images of rapes or other forms of sexual assault;

— remote control or surveillance, including by means of spy applications on mobile devices;

— threats, including direct threats and threats of and calls to violence, such as rape threats, extortion, sextortion, blackmail directed at the victim, their children or at relatives or other persons who support the victim and who are indirectly affected;

— sexist hate speech, including posting and sharing content, inciting to violence or hatred against women or LGBTIQ people on the grounds of their gender identity, gender expression or sex characteristics;

— inducements to inflict violence on oneself, such as suicide or anorexia and psychic injury;

— computer damage to files, programmes, devices, attacks on websites and other digital communication channels;

— unlawful access to mobile phones, email, instant messaging messages or social media accounts;

— breach of the restrictions on communication imposed by means of judicial orders;

— the use of technological means for trafficking in human beings, including for sexually exploiting women and girls.

— which victims?

The personal scope of the proposal should cover all victims of gender-based cyberviolence, with a specific recognition of intersectional forms of discrimination and victims participating in public life, which include:

— women and girls in all their diversity; and

— LGBTIQ people on the grounds of gender identity, gender expression or sex characteristics.

Recommendation 3 on preventive measures

Member States should implement a series of measures in order to prevent gender-based cyberviolence, all such measures should prevent re-traumatisation and stigmatisation of victims of gender-based cyberviolence, be victim-centred and have an intersectional approach. Those measures should include the following:

— awareness-raising and educational programmes including programmes addressed to boys and men, as well as campaigns involving all relevant actors and stakeholders to address the root causes of gender-based cyberviolence, within the general context of gender-based violence in order to bring about changes in social and cultural attitudes and remove gender norms and stereotypes, while promoting the respect of fundamental rights in the online space, with special regard to social media platforms and increasing literacy about the safe use of the internet

— research on gender-based cyberviolence (including aspects such as causes, prevalence, impact; victims, perpetrators, manifestations, channels and need for support services; such research should include studies and the adjustment of crime statistics on gender-based cyberviolence to identify legislative and non-legislative needs; such research should be supported by the collection of disaggregated, intersectional and comprehensive data;

— mainstream digital education, literacy and skills such as cyber hygiene and netiquette, including in school curricula, in order to promote an enhanced understanding of digital technologies, in particular to prevent social media misuse and the empowerment of users, to improve digital inclusion, to ensure the respect for fundamental rights, to eliminate any gender inequality and biases in access to technologies and to ensure gender diversity in the technology sector, particularly in the development of new technologies, including training for teachers;

— facilitation of women’s access to education and academia in digital technology domains in order to remove the gender gap, including the digital gender gap, and ensure gender diversity in the tech sectors, such as ICT and STEM, particularly in the development of new technologies, including AI, and, in particular in decision-making positions;

— the promotion and sharing of best practices in access to justice, sentencing and remedies that have a gender-responsive approach;

— the promotion of integrated and comprehensive educational and treatment programmes aimed at preventing perpetrators from re-offending as well as at shifting behaviour and mindset away from violence, in cooperation with relevant institutions and civil society organisations, taking into account community-based practices and transformative justice approaches, which are crucial to stopping the cycle of harm;

— the development of cooperation among Member States for the purposes of exchanging information, expertise and best practices, in particular through the European Crime Prevention Network, coordinating with the Europol’s European Cybercrime Centre and other related bodies, offices and agencies such as Eurojust in line with fundamental rights;

— for online platforms that are primarily used for the dissemination of user generated pornographic content, ensure that the platforms take the necessary technical and organisational measures to warrant that those users who disseminate content have verified themselves through a double opt-in e-mail and cell phone registration;

— recognising, supporting and providing information about civil society organisations working in the field of gender-based violence, prevention, including by ensuring that they have financial support;

— the promotion of focused and continuous training for practitioners and other professionals, including social services staff law enforcement officers, justice officials and other relevant actors, to ensure that the causes and impact of gender-based cyberviolence are understood and victims are treated appropriately and to ensure that training for all practitioners has a gender-responsive approach;

— a consideration of regulating the software development of monitoring applications, with the aim of considering possible misuse or abuse of those application and providing for adequate safeguards so as to protect fundamental rights and ensure compliance with applicable data protection law; the prohibition by the Commission of marketing of any monitoring software which engages in surveillance without the user’s consent and without clear indications of its activity;

— a consideration of the code of practice for online platforms, taking into account its possible implication or role within the context of gender-based cyberviolence, and ensuring that civil society organisations can participate in the evaluation and review of the Code of Conduct on Countering Illegal Hate Speech Online; adoption of measures obliging IT companies to improve the feedback they provide to users via notifications which would allow them to react quickly and effectively as regards content flagged as illegal;

— the recognition of the digital dimension of gender-based violence in national strategies, programmes and action plans as part of a holistic response to all forms of gender-based violence;

— the promotion of cooperation between Member States, internet intermediaries and NGOs working on the issue, such as by means of peer learning events or public conferences;

— multidisciplinary and stakeholder cooperation, including with technology companies, hosting service providers and competent authorities, on best practices to tackle gender-based violence in line with fundamental rights.

Recommendation 4 on protection of, support to and compensation of victims

The Commission and Member States should take the following actions, which should all be victim-centered and have an intersectional approach:

— promote mandatory specific and continuous training for practitioners and professionals dealing with victims of gender-based cyberviolence, including law enforcement authorities, social, child and healthcare staff, criminal justice actors and members of the judiciary; Union-wide training programmes could be implemented in the framework of the Justice and the Citizens, Equality, Rights and Values programmes and together with the European Union Agency for Law Enforcement Training (CEPOL) and the European Judicial Training Network; in particular, emphasis should be given to secondary victimisation and how to avoid it, to the dual dimension of gender-based violence (online/offline) and to intersectional discrimination, as well as to the assistance provided to victims with special needs;

— ensure that all training for practitioners have a gender-responsive approach and that the programme includes actions to ensure that the victim is not re-victimised during criminal proceedings (re-victimisation and stigmatisation);

— for online platforms that are primarily used for the dissemination of user generated pornographic content, ensure that the platforms take the necessary technical and organisational measures to warrant the accessibility of a qualified notification procedure in the form that individuals may notify the platform with the claim that image material depicting them or purporting to be depicting them is being disseminated without their consent and supply the platform with prima facie evidence of their physical identity and that content notified through this procedure is to be suspended within 48 hours;

— for online platforms that are primarily used for the dissemination of user generated pornographic content, ensure that the platforms take the necessary technical and organisational measures to a warrant professional human-powered content moderation, where content having a high probability of being illegal, such as content depicting to be voyeuristic or enacting rape scenes, is reviewed;

— set up national contact points in social services and law enforcement agencies with special staff trained on gender-based cyberviolence for victims to report gender-based cyberviolence in a safe environment; contact points should be coordinated through a network; those measures would contribute to addressing underreporting and re-victimisation and create a safer environment for victims of gender-based cyberviolence;

— facilitate access to information for victims in a simple and accessible language that the victim can understand, particularly on legal aid and actions as well as support services, and develop specific services for victims of cyberviolence (helplines, shelters, legal and psychological assistance; facilitate reporting by victims, allowing them to obtain protection orders, and develop redress mechanisms with adequate reparation compensation measures;

— equip national telephone helplines with the necessary resources and expertise to respond to the digital dimension of gender-based violence;

— set up a Union-wide telephone helpline as a contact point for victims and ensure that victims can easily and freely use it; develop a directory of support services, including helplines and reporting mechanisms available in individual cases of cyberviolence;

— ensure that victims of gender-based cyberviolence in Member States have access to specialised support services and to justice, remedies and safe and accessible reporting procedures and mechanisms independently of the filing of a complaint; remove all obstacles that victims who decide to file a complaint may face and create complaint mechanisms that are easily and immediately accessible to victims, including by digital means;

— develop cooperation mechanisms between Member States, internet intermediaries and NGOs working on the issue, as well as between relevant actors, such as the judiciary, public prosecutors, law enforcement agencies, local and regional authorities and civil society organisations;

— support civil society organisations, particularly those that provide victim support services, including by providing financial support);

— promote the ethical development and use of technological solutions that support victims and that help identify perpetrators, while ensuring full compliance with fundamental rights.

Commission should develop guiding principles for law enforcement officials when dealing with victims who report gender-based cyberviolence, which should equip them with the necessary soft skills to carefully listen, understand and respect all victims of gender-based cyberviolence; the guiding principles should have a gender-responsive approach.

Member States should develop specialised protection and support services which are accessible free of charge to all victims, including emergency and long-term support, such as psychological, medical, legal, practical and socio-economic support, taking into account the specific needs of the victims, and give particular attention to victims belonging to groups particularly exposed or in need. The Commission should support Member States in that regard.

Recommendation 5 on prosecution and criminalisation of gender-based cyberviolence

Based on the definition referred to in Recommendation 2 and considering that criminalisation of gender-based cyberviolence could have a deterrent effect on perpetrators, the criminalisation of gender-based cyberviolence should take into account the following criteria:

— the forms of gender-based cyberviolence to be criminalised by Member States (to cover also earlier phases of cybercrime — incitement, aiding, abetting and attempt);

— minimum and maximum penalties (prison and fines);

— cross-border investigation and prosecution;

— specific provisions indicating the guidelines for investigation and prosecution mainly addressed to law enforcement and prosecutors, which should also contain specific indications for law enforcement on evidence collection;

— effective cooperation between law enforcement authorities and tech companies and service providers, especially with regards to the identification of perpetrators and gathering of evidence, which should be in full compliance with fundamental rights and freedoms and data protection rules;

— any evidence should be gathered in a way that does not cause secondary victimisation or re-traumatisation of the victim;

— aggravating circumstances, depending on the profile of the women, girl and LGBTIQ victims, e.g. exploiting specific characteristics or vulnerabilities of women, girls and LGBTIQ people online;

— risk assessments should include and consider behavioural patterns and gendered aspects of the incident such as stereotypes, discrimination, sexualised threats and intimidation; that information should be used to determine follow-up actions and to enhance the collection of data related to the different manifestations of gender-based cyberviolence;

— providing evidence should not represent a burden for victims or contribute to further victimisation.

All the actions should be victim-centred and have an intersectional approach

Recommendation 6 on data collection and reporting

The Commission and Member States should regularly collect and publish comprehensive disaggregated and comparable data on the different forms of gender-based cyberviolence, not only on the basis of the law enforcement reports or civil society organisations but also on the basis of victims’ experiences. Those data could be followed by comprehensive studies. Member States’ data on gender-based cyberviolence should be collected and made available through the statistics databases of the EIGE, the FRA and Eurostat, and Member States should ensure that they make the best use of the EIGE’s capacity and resources. The FRA should conduct new extensive Union-wide research on all forms of gender-based cyberviolence, which should be based on the most recent Union data in order to provide an accurate response.

The Commission should submit a report on a regular basis to the European Parliament and to the Council assessing to what extent Member States have taken measures following this recommendation. The Commission should also improve gender-disaggregated data on the prevalence and harms of gender-based cyberviolence at Union level.

The Commission and the Member States should develop indicators to measure the effectiveness of their interventions to address gender-based cyberviolence.

Additional recommendations could include:

— the production of statistics on the prevalence and forms of cyberviolence, fostering at the same time the uniformity and comparability of data gathered by Member States,

— a Union-wide data collection programme,

— the gathering of data on a regular basis for knowledge to keep up with the constant evolution in tools and technologies that can be used to perpetrate cyberviolence,