This article is based on the issue paper written by Namita Maholtra as part of the APC “End violence: Women´s rights and safety online” project entitled “Good questions on technology-related violence”, and on a strong alliance with partners in seven countries: Bosnia and Herzegovina, Colombia, Democratic Republic of Congo, Kenya, Mexico, Pakistan and the Philippines. Looking at tech-related violence against women, law and corporate policy, this article by Tarryn Booysen summarises the major points in the paper, responding to frequent questions on tech-related VAW and answering them with the research findings.
“Technology-related VAW infringes on women’s right to self-determination and bodily integrity. It impacts on women’s capacity to move freely, without fear of surveillance. It denies them the opportunity to craft their own identities online, form and engage in socially and politically meaningful interactions. – Namita Maholtra
Violence against women has been defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life” (United Nations Declaration on the Elimination of Violence Against Women, 1993 or UN DEVAW). Technology-related violence against women (VAW) falls within this definition of violence but is mediated via phone, internet, social platforms etc. It is acts or behavior that cause harm or suffering, both mental and physical, and is increasingly becoming part of women’s experience of violence as well as part of their online interactions.
Instances of technology-related violence found included taking and/or uploading and distributing intimate photos and/or videos without consent; harassment (women receiving insulting text messages); receiving comments and messages online using sexualized insults; stalking; blackmail/ threats; accessing and/ or dissemination of private data; creation of a fake profile/identity theft; hate speech; child pornography; and rape/sexual violence.
An argument often heard is that technology-related VAW is not a serious offence and that other rights issues should be addressed before taking technology-related VAW into account. Technology-related VAW covers different behaviour and actions that are invasive of privacy and bodily power, but since these offences happen via technology, they are not taken seriously. They are then doubly trivialized, with factors such as class, caste, ethnicity and race playing a role.
Technology-related violence exists in a continuum, and often what are seen as ‘merely virtual’ threats soon translate into physical violence and threats to the life and safety of individuals, says Namita Maholtra. A frequent misconception is that if harassment or stalking takes place online then it should be dealt with online. The perception is often that the violence that takes place online is not “real” and is therefore less harmful. Another common perception is that if violence is not physical, then it is not as damaging. However, mental cruelty and psychological violence are recognized both in international law and in most national jurisdictions.
However, when women report these cases to the police, they can be unaccommodating or dismissive. It is hard to even get a police report filed, because of the failure of the authorities to recognize online threats and harassment as VAW. Further, they are not always equipped to deal with it. Poverty and a lack of social security make it more difficult to access systems of justice which in turn make it more difficult for some cities, with limited direct access to technology and people outside circles of privilege to access justice for technology-related VAW. To make the law effective, what is needed is for the police and judiciary to have more knowledge on technology-related VAW – how it is committed and who can be held liable. Staff employed in companies and multinational enterprises also need to be trained on how to deal with complaints.
Law
“This vulnerability to structural violence and exclusion is not limited to women, but is also part of the experience of transgender and intersexed people, and often even experienced by minority and ethnic groups that are in grossly unequal relations to those in positions of power or authority.” – Namita Maholtra
Violence against women and transgender people that is mediated through technology is indicative of the limits of both sexual and technological citizenship – who can and can’t determine their own lives, desires and bodies, and who can access technology for their own needs rather than being at the mercy of technologies of the state.
Offences related to violence against women are mostly contained in penal laws, and often fall short of the provisions provided under the UN Declaration on the Elimination of Violence Against Women or under General Recommendation 19 of CEDAW. In Bosnia and Herzegovina, for example, provisions relating to VAW can be found in the penal code under criminal offences against sexual freedom and morality. Pakistan and Democratic Republic of Congo (DRC) have laws that look at VAW as violations against a woman’s modesty and violations against good morals and public morals respectively. In Kenya and DRC, violence against women can be found under the sexual offences acts. Under these laws, VAW is closely tied with morality, only women can be ‘victims’ and often sexual assault is defined in terms of penile penetration. These categorizations automatically limit the laws applicability and fail to recognize the multiple forms of violation that exist.
Most women face violence that extends from online to offline and is not limited to a technological device or platform – harassment and stalking often leads to physical violence, or sexual assault is captured via images that are then circulated online. Thus, what is needed is a review of legislation relating to VAW, and this must include technology-related violence because only then would it cover the range of violence that women and other vulnerable people face says Namita Maholtra.
There have been various privacy policies put into place, but feminists have had a long standing problem with the notion of privacy as articulated in terms of the domestic or the home, because it allowed for the creation of a private sphere sanctified by culture and patriarchy within which women were often ‘victims’ of violence or their mobility and employment outside the home was suppressed. However, privacy is critical for survivors of VAW; it allows them to access life-saving information and to take steps to keep violence out of their lives. The right to privacy is often recognized in the constitution and in penal law of many countries. So it can become a strong mechanism to support the rights of women in the context of technology-related VAW, especially in relation to so-called ‘revenge porn’ (a gross violation of a woman’s privacy where private and sexually explicit video and photographic images are published without explicit permission and consent onto various websites for the purposes of extortion, blackmail and/or humiliation).
Ideally both civil and criminal remedies should be available for dealing with tech-related VAW. In South Africa, a possible remedy against online and offline harassment is through the Protection from Harassment Act 2010, under which victims can apply to the courts for a protection order for up to five years. Harassment is defined to include both online and offline harassment, whether within domestic relations or by others. Similarly Nova Scotia provides for a protection order in the case of cyber bullying, which includes punishment of a fine and confiscation of electronic devices.
The findings from the study carried out in 12 countries by APC on technology-related VAW led to these findings:
- In most countries there is a need for specific provision for technology-related VAW criminal offences;
- Both civil and criminal remedies are necessary;
- Law enforcement only deals with “serious” or more technical crimes;
- Gender related crimes are not a priority for police;
- There is only the existence of bills, rather than acts, or non-functioning cyber crime units in most countries etc.
Company policy
“Instances of technology-related VAW are most often dealt with through out-of-court settlements rather than lengthy or corrupt trials. One useful regulatory or legal measure would be the amendment of outdated language in colonial laws, especially penal laws, which emphasize the modesty and/or chastity of the woman. There needs to be a shift in this language from a protectionist policy to one that recognizes the autonomy of women and those vulnerable, their power over their own body and lives and the full extent of their citizenship.” – Namita Maholtra
Stricter laws for technology-related VAW can offer criminal and civil remedies (most of them are amendments to criminal law) to women and other vulnerable people who face harassment, bullying, stalking and other technologically mediated violence that can often extend to physical harm. This would cover instances of willfully leaking intimate images and doing ‘sting operations’ that violate the privacy of the person. The ways in which laws are drafted and the duty of the courts is to maintain the balance between the right to privacy of the individual as recognized in international law, constitutional law and penal laws, and freedom of expression. The only defense against charges of defamation and voyeurism or willful exposure of private/intimate material is that public good will be served by such a disclosure. Most cases of technology-related VAW are malicious attacks on the sexual and technological citizenship of women and other vulnerable people. While technology is heralded as bringing greater freedom of expression and greater efficiency, it also increases the vulnerability of those who do not have access to privileges of gender and class, such as women, minority groups, transgender people, poor people and others. Technology-related VAW impedes freedom of expression of women by creating a violent, misogynistic culture online.
In relation to social platforms, such as Facebook, Google+, Twitter, Orkut and others, the following have been found to be specific instances of harassment, bullying, threats and other kinds of violence, both psychological and sometimes physical harm:
- Creation of ‘imposter’ profiles of women; often to discredit, defame and damage their reputations.
- Spreading private and/or sexually explicit photos/videos; often with intent to harm, and/or accompanied by blackmail.
- Pages, comments, posts, targeting women with gender-based hate (misogynistic slurs, death threats, threats of sexual violence, etc.)
- Publishing personal identifying information about these women including names, addresses, phone numbers, email addresses without their consent.
Most companies that provide services, social platforms or websites require the user to agree to their terms of services (TOS). In most companies, the TOS refer to illegal uses that impact the company directly, such as violation of copyright, financial fraud, extortion, child pornography but do not specifically mention any human rights abuses, especially those based on gender, sexuality or related issues. The liability of the company via TOS is often only a reflection of their legal obligations in their country of residence. There is common reluctance to engage directly with human rights issues.
A company enters into a privacy policy with the user, which requires it to protect their data unless ordered to divulge by a court order It provides a system of checks and balances that limits abuse of privacy rights by governments and other state authorities, as well as by companies and individuals. A privacy policy also ensures that this protection is extended to women, transgender people and other users who might be vulnerable. However, not many people know how to make a complaint to a multinational company. Moreover the records of how such a process works are not easily available to determine its effectiveness, as was found during the APC study.
Most companies do have the mechanisms in place that should technically respond to such violations. But there is little public information on how these mechanisms work or how effective they are – even basic information like how many complaints received, statistics of how they were dealt with, or the kind of training on sexuality, gender, human rights, law the staff receives. It is because of this corporate stonewalling that survivors of technology related violence have to access remedies through the courts, even if these are slower or less effective. Also companies often take impromptu action without reference to their own complaint procedures and thus end up hampering speech of the survivors of technology-related violence, or women and others who are vulnerable. Facebook’s policy on breastfeeding pictures is one example, where their mechanisms of censorship and ad-hoc removal are more harmful to women than beneficial.
The staff employed in companies need to be trained about how technology is used in such instances for violence against women and how to effectively stop or block the aggressors. Training or capacity building should include what relevant international guidelines or national laws have to be followed in relation to the commitment of business operations to uphold the human rights of women, vulnerable or minority groups; and national laws on defamation, voyeurism or other civil and criminal offences connected to technology related violence against women. There is little understanding of how technology can be used for violence against women, for instance a user can switch accounts to a new account to continue their abusive behavior. In such instances the company has to find effective ways of blocking the aggressor.
Companies would be the most effective providers of remedies such as the take down of material that violates a person’s privacy, or effectively blocking a user who is harassing even if they switch accounts. The presumption of most corporate polices, however, is that the only demand is identifying harassing users, and this obscures the possibility of coming up with more holistic solutions to technology-related violence against women and others who are vulnerable.
For purposes of data retention laws or for billing, most companies have information to substantiate claims of abuse (for instance, the frequency of calls or contact made by the aggressor or the person misusing the services). Most companies however do not enact the disruption of services policy in relation to abusive behaviour or acts, stalking, harassment, threats etc. Suspending services is confined to instances when companies are owed monies. If the law of the land does not take abusive or coercive messages sent via phone or SMS seriously as threats, then in such cases (Mexico, Bosnia and Herzegovina) it is unlikely that companies would take any helpful action on behalf of the woman or other vulnerable person being targeted.
APC’s study covered the following companies – platforms such as Facebook, Twitter, Google+, YouTube, Instagram, WordPress; pornography websites such as XVideos and Youporn; internet portals such as Google-Colombia and Yahoo-Philippines; and telephone, mobile and internet service providers such as Telecom in Bosnia and Herzegovina, Claro ETB in Colombia, Airtel in DRC and others including national telecom services in Kenya, Pakistan, Mexico, Philippines.
- In the study conducted by APC, companies surveyed had no formal or public records of how customer service departments operate. The study looked at what records they keep, what kinds of reports they receive and with what frequency, whether they have enough staff for the volume of complaints, and what transparency measures are in place regarding company decisions on complaints.
- Even if there is a clear definition of unacceptable use in the TOS, there is no clear, easy-to-access and transparent procedure to deal with complaints of violations by any of the users vis-a-vis others on the website or platform. Such complaints of illegal or abusive behaviour need to be dealt with in a formal and timely manner beyond a general ‘customer service’ department.
Most such companies shift the burden of dealing with technology-related VAW to the national government where their operations are located, or to the individuals facing harassment. Their responses are that:
- law enforcement is responsible for addressing VAW,
- that a court order is essential to protect privacy rights, and
- that women and girls should take steps to keep themselves safe.
“While most women’s groups and feminists agree that companies must abide by privacy law and laws for freedom of expression at an international and national level, the corporate attitude displayed to abuses of women’s rights and human rights is troubling.” – Namita Maholtra
Recommendations for law making institutions and those lobbying for legal change as stated by Namita Maholtra in her paper
1. The law should recognize VAW as a human rights violation and provide a comprehensive definition of VAW to include psychological violence occurring in public and private life.
2. The text of the law must change from emphasis on chastity of woman, to recognition of her autonomy over her own body and life in accordance with the universal right to self determination. This basic change in terminology should be reflected in all laws related to violence against women.
3. Changes in law for technology related VAW, should extend to others who are vulnerable because of gender – like transgender and intersexed individuals who face harassment and violence on a daily basis.
Recommendations for corporate policy as stated by Namita Maholtra in her paper
1. Companies, especially multinational companies, providing internet/ telephony services, social and pornography sharing platforms, must abide by the United Nations Guidelines on Business and Human Rights (or the “Protest, Respect and Remedy” framework of the UN) that requires that all human rights be respected throughout the operation of businesses. The company should make a formal and authentic commitment to upholding human rights, and taking action to prevent and address violence against women and transgender people, even though it is the duty of the State to ensure the guidelines are followed.
2. The privacy policy of the company should provide adequate protection to those who are vulnerable to forms of violence and harassment via the company’s services. This privacy policy should protect against technology-related violence, and not be a veil behind which acts of harassment and violence are protected.
3. Companies should invest in capacity building of personnel, particularly in customer service departments, and also have separate procedures for dealing with complaints of technology-related violence against women and others who are vulnerable. Most of those employed in these departments are not aware of how technology can be used for violence and harassment, nor are they aware of the duties and the obligations of the company to protect their users against such violence under national law, international guidelines and under their own terms of service. In particular, they need to improve their ability to fully serve people who do not speak English and/or live outside of North America and Europe.
This research has shown that tech-related VAW does exist and it is constantly increasing. End-users do not know their rights or in most cases they are not protected by the law. Technology-related VAW is a crime and intermediaries need to be accountable. Capacity building workshops need to be put in place for staff and transparency is needed. If we cannot influence new laws, then amendments need to be made to the existing ones.
To read the full research in which this article draws on, click here
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