Combining Forces: Why Non-Criminal Approaches Matter in Tackling Tech-Facilitated Gender-Based Violence

In June 2027, the EU Directive on Violence against Women and Domestic Violence (hereinafter, VAW Directive) will enter into force, ensuring minimum criminalisation standards are applied to four manifestations of Technology-Facilitated Gender-Based Violence (TFGBV) across the Union. These include the non-consensual sharing of intimate or manipulated material, cyber-stalking, cyber-harassment and cyber incitement to hatred. As well as aiming to ensure consistent prosecution of perpetrators, the VAW Directive represents a cultural shift by recognising the severity of these crimes at an EU level.

However, the definition of these crimes are imperfect and raise several concerns for fundamental rights: On the one hand, there will still be significant onus on survivors to prove “significant harm” has been caused by the actions of an alleged perpetrator, which may deter many from pursuing the criminal redress options available to them. On the other hand, defining one aspect of cyber harassment as “engaging, together with other persons […] in publicly accessible threatening or insulting conduct directed at a person, where such conduct is likely to cause serious psychological harm to that person” without a clear delineation of what constitute “threatening or insulting conduct” leaves this definition open to wide interpretation that may in turn lead to an inappropriate application of these criminal standards. This is particularly concerning given the present evidence that ill-defined laws have been used to over-criminalise marginalised communities, thereby risking suppressing the speech of those the law intends to protect. These concerns raise the stakes for member states’ transposition of the Directive into their national laws, as this awards legislators the opportunity to improve upon the standards of the Directive and to clarify remaining legal questions and concerns.

While CDT Europe continues to advocate for a comprehensive and survivor-centred transposition of the VAW Directive, we recognise that relying on the criminalisation of specific forms of TFGBV is falling short of the holistic response needed to effectively tackle this multi-faceted problem and to do right by survivors. Therefore, we wish to highlight the importance of Non-Criminal Redress Mechanisms (NCRM) in mitigating existing harms and responding to the needs of survivors, as well as in preventing future harm.

The concept of redress refers to a wide range of remediation activities that are aimed at “addressing, repairing and/or healing from the after-effects of individual or collective harm.” Underlying this definition of redress is an understanding of justice that goes beyond punishment and includes responding to the needs of survivors, whether “physical, emotional, financial, creative, social or otherwise.” While NCRM can take a variety of shapes (e.g. the acknowledgement of rights or the provision of financial, emotional or psychological support), the lived experiences, needs and wishes of survivors remain at the core of this approach. CDT Europe understands TFGBV as an expansive phenomenon, “capturing both online and offline harms facilitated through digital technologies, and reflecting the continuum of gendered violence.” Therefore, TFGBV includes acts that we recognise as causing gendered harm, but that may not rise to the status of illegality. This distinction is crucial in the process of balancing the fundamental rights of non-discrimination and free expression, and makes the consideration avenues to pursue non-criminal redress particularly relevant. A broad range of tools are needed to address the myriad of ways that TFGBV manifests, including where it is harmful but not illegal.

While the prosecution of perpetrators may be one element of redress in cases amounting to illegal actions, the discursive focus on the survivors’ healing process rather than on the punishment of perpetrators distinguishes these approaches from conventional ones. NCRM focus specifically on means to provide redress beyond criminal prosecution.

In the following brief, we will delve into the disadvantages that a criminalisation approach may have when it comes to TFGBV and explore the opportunities NCRM offers for redress. Finally, we examine how the Digital Services Act (DSA) complements the VAW Directive to provide for a multi-pronged approach in which NCRM are available and standards on how content relevant in potentially criminal cases should be addressed. The DSA also establishes mechanisms that allow for non-criminal redress – such as internal complaint mechanisms, mediation by Out-of-court Dispute Settlement (ODS) Bodies and civil society representation and counsel. This approach is an important step in the right direction, but requires further measures to ensure a holistic response to TFGBV across the EU.

Limits of criminal approaches 

The added value of NCRM stems both from the gaps and limits of a purely criminal approach, which they fill, and from intrinsic benefits, such as their flexibility to adapt to the complex and diverse experiences of survivors. A holistic understanding of a criminal approach to TFGBV is necessary in order to understand the limits and potential harm of criminal approaches resulting from the intersecting forms of discrimination affecting survivors from marginalised communities in the criminal context.

Western-centric and narrow definitions in criminal law

As mentioned previously, offenses defined in criminal law can fail on multiple levels: their definition may rely, as in the VAW Directive, on survivors proving to institutions that the harm they have suffered is ‘significant’, which in cases of TFGBV is difficult given the history of reluctance from police to investigate cases and victim-blaming responses from authorities.  This approach pays little regard to the burden this represents, nor to the potential for discrimination this brings, as marginalised communities and their experiences are less likely to be believed and prioritised due to inherent bias in policing. In the specific case of TFGBV, the definition of crimes may rely, implicitly or explicitly, on highly contextual conceptions of intimacy and abuse. As such, in a recent report examining the experience of survivors of image-based abuse in Pakistan and its diaspora, the non-governmental organisation Chayn has found that western-centric conceptions of intimacy, which is equated to sexuality and nudity, fails to capture the harms experienced by them. Images depicting no nudity or sexual acts may be equally harmful due to their context – the clothing or head-covering (not) worn, the (male) company present or the activities (such as dancing at a wedding, laughing, smoking) and locations (bars, restaurants or known “dating spots”) depicted. Crucially, this and other reports shows that harm is not linked to the survivors own values or belief, but rather to societal expectations and injunctions. Through the non-consensual sharing of such images – “intimate” in a western sense or not – survivors are denied control over their likeness and their dignity is targeted. Therein lies the harm. In light of this, the inadequateness of narrow and rigid definitions of intimacy translating a western understanding of the concept, as is the case in the AI Omnibus’ prohibition of AI tools intended to create non-consensual intimate images – understood to be “realistic” images of “the genitals, pubic area, anus, exposed buttocks or exposed female breasts, nipples or areolae, or of sexually explicit activity” – becomes evident.

However, this should by no means be understood as a call for broadening the definition of illegal content and TFGBV-related crimes excessively. Indeed, overbroad and vague crime definitions are at risk of being abused. Without adequate safeguards, inoffensive or protected speech (for example, consensually shared intimate images, or publicly shared experiences of survivors of violence, similar to the #MeToo movement) may become criminalised – inadvertently or not. Therefore, broadening these definitions comes with the risk of chilling the free expression of users, and may, in keeping with the established overpolicing of minorities communities, lead to the over-criminalisation of minoritised communities, who are paradoxically already at higher risk of being targeted by TFGBV.

Exclusionary criminal processes

Beyond the legal definition of crimes, the criminal process in itself presents many hurdles to survivors seeking justice, in particular those from marginalised communities. Described by survivors as long, harrowing and excessively complex, the process of lodging a criminal complaint to police authorities harbours the potential of re-traumatisation, which “occurs when State or non-State actors fail to uphold victims’ rights and do not adequately understand their suffering, through an inadequate response or lack of response to the original victimising event”. This can leave victims feeling isolated and unsafe and lead to further traumatisation.” Survivors from marginalised communities are disproportionately faced with negative experiences when reporting to the police, facing discrimination, victim-blaming and disregard for their rights and wellbeing – as reflected in testimonies by survivors engaged in sex work and by racially minoritised survivors. The result is that criminal redress mechanisms remain largely inaccessible for survivors from communities, who, aware of discriminatory policing practices, may encounter police authorities with significant distrust. The implications of making such a complaint may be deemed too threatening or intimidating, leading to an under-reporting of TFGBV instances.

To some extent at least, these flaws can and should be addressed with better, inclusive legislation as well as capacity building, awareness raising and adequate budgetary allocation in policing and other relevant authorities. But addressing the systemic discrimination that continues to permeate judicial systems cannot be solved by these actions alone. Criminal prosecution on its own thus does not present a palatable or even adequate approach for many survivors. Crucially, a focus on criminal approaches alone, especially in their current form, leaves out a much needed focus on survivors’ wishes and needs for healing and recuperation.

Inherent benefits of NCRM

While many of the advantages of NCRM have to do with the limits of criminalisation in responding to TFGBV, NCRM also offer inherent benefits, such as a high level of flexibility: to face the wide spectrum of various forms of TFGBV women and gender-diverse people encounter online, a diverse toolbox of nimble approaches to redress is indeed crucial. As TFGBV can affect women and gender-diverse people in every aspect of their life – be it in their physical and mental wellbeing, in their social life, or in their financial and professional life – NCRM can offer a more meaningful attempt at tackling both the effects and the root causes of such violence more holistically than purely criminal approaches.

Within such non-criminal approaches, measures at preventing harm before it occurs, by tapping into platforms’ due diligence responsibilities as well as by raising awareness among the public and ensuring the gender-sensitive education of youth, play a crucial role. Once harm occurs, redress for survivors of TFGBV may take on many forms. For example, in the immediate aftermath, community responses can include “actions by both online and offline actors”, independent or organised, with a focus on “immediate care, harm reduction, and mitigation.” It can also take on the forms of civil society support to submit a complaint to the online platform where harm has occurred, ensuring the harm is addressed. In the longer term, to enable a complex and highly personal support process, it may include opportunities for professional support and counsel, which should be provided and readily available to survivors in whichever mode is most useful to them – be it psychosocial support and therapy, financial support, legal counsel, or remediation. For the latter, mechanisms for mediation should be made available,  should this be an avenue that survivors want to pursue, both with perpetrators or to settle disputes with online platforms. In order for these services to be effective and reach every person in need of them, they should be easily accessible and conducted in safe, inclusive settings, with absent access barriers and heightened cultural awareness. In this context, the expertise of feminist and survivor-led organisations should be relied on and supported.

The DSA and Non-Criminal Redress

The DSA reflects a multi-pronged, multi-stakeholder approach which, to an extent, bridges the gaps of both criminal and non-criminal redress. It includes rules regarding the swift takedown of illegal content (chapter II of the DSA). As explained, in the context of the criminalised forms of TFGBV captured in the VAW Directive, this may be the specific content evidence for the alleged criminal conduct. Additionally, many of its innovations regard non-criminal mechanisms, such as the empowerment of users through user-friendly reporting and complaint mechanisms or the institution of ODS bodies. These tools allow for action to be taken to ensure harm does not continue, even where harmful content may not amount to illegality. For example, in the case of gendered disinformation, most platforms prohibit some or all behaviours underpinning gendered disinformation (see for example the hateful behaviour or hate speech policies on Tiktok, Meta or Youtube, Youtube’s cyberbullying and harassment policy and Tiktok’s misinformation policy). In such a scenario, survivors can report the content that violates the platform’s policy, which the platform may decide to remove or restrict. Following a platform’s decision, the survivor may choose to appeal through a platform’s internal processes or by taking their case to an ODS body. ODS bodies have, in the past, ruled on platform’s decisions related to content akin to TFGBV, such as Appeal Centre Europe did in an instance of comparing gender non-conforming identities to a mental illness.

Through the due diligence and transparency obligations of its third chapter, the DSA also includes a preventative component, which takes aim at the systemic effects of the policies implemented by companies. Additional mandatory due diligence obligations specific to Very Large Online Platforms and Search Engines (VLOPSEs) address forms of TFGBV that cause significant harm, such as gendered disinformation, but that are more appropriately addressed through risk mitigation and expert consultation rather than through criminalisation. While this has so far been an under-utilised mechanism, in particular related to TFGBV, appropriate consultation mechanisms with affected individuals or representative organizations during the Risk Assessment lifecycle should allow for better platform response mechanisms to be developed. Importantly, the DSA institutionalises the multi-stakeholder ecosystem needed to govern the online space and mitigate TFGBV: it calls platforms to responsibility for the harms they facilitate, while expliciting the mandate of the European Commission and of national regulators in enforcing this responsibility. Additionally, it recognises the crucial role non-governmental organisations play in this ecosystem, both by holding platforms to account and by supporting affected communities. 

In practice : combination is key

When advocating for the inclusion of NCRM in responses to TFGBV, it is crucial to acknowledge the context this advocacy will take place in. As such, in the current political discourse, there is still work to be done to enhance awareness of the harm all forms of TFGBV produce – with the VAW Directive constituting an important step in this direction. But in a society where punitive measures are the default response, we recognise the risk of inadvertently framing TFGBV as a “lesser crime” by advocating for NCRM. Similarly, advocating for non-criminal redress should in no way be understood as a way for states to avoid responsibility in combating TFGBV, or as a way allow perpetrators to avoid responsibility for the harms caused. On the contrary, NCRM should be understood as part of a multi-pronged approach to tackling TFGBV, in which victim-centred and rights-respecting criminal prosecution may play a role in bringing justice to survivors alongside government action to support prevention and remedy mechanisms, for example through education and through the funding of community-based care and support centres. Throughout its work on TFGBV, CDT Europe advocates for such an approach.

In interviews with survivors, the UK-based organisation Glitch found that they did not apprehend criminal and non-criminal approaches as mutually exclusive: survivors who supported more NCRM were also in support of better recognition of the harms created by perpetrators of TFGBV in criminal law. This showcases how both approaches can and should be used in tandem, with swift and effective takedown of illegal content an indispensable first step to avoid the continuation of harms.

Non-criminal redress mechanisms, in combination with criminal approaches, allow for a proportional and balanced approach to TFGBV, in keeping with international human rights standards. Indeed, as we have previously argued, legislation to address TFGBV “must assess the balancing of rights under international law, especially the right to freedom of expression or access to information.” NCRM are a key tool to hold perpetrators to account while preventing “potential over-enforcement of laws, especially for historically marginalized communities, who continue to face discrimination such as a disproportionate application of punitive measures and surveillance from law enforcement bodies.”

The role legislators and regulators have to play

However, advocating for the inclusion of NCRM does not equate minimising the responsibility of public actors in this space. Effective tackling of TFGBV is a common, whole-of society effort relying on a variety of approaches driven by public institutions that go beyond criminalisation. As previously mentioned, the effective transposition of the VAW Directive into national laws criminalising certain forms of TFGBV is one step towards driving lasting improvement, due to laws’ “ability to penalise perpetrators and influence attitudes and behaviors at a national or even international level”, and criminal prosecution can be valuable to survivors. In this context, legislators have a responsibility to ensure the criminalisation of TFGBV does not inadvertently curtail fundamental rights of those they seek to protect. Therefore, blunt laws including overbroad definitions and measures to end online anonymity should be avoided at all cost.

As established previously, the DSA provides some key tools in establishing non-criminal approaches. It is crucial that platforms abide by their duties, especially as it regards VLOPSEs’ obligation to identify, assess and mitigate systemic risks of gender-based violence. The obligations must be consistently enforced by the European Commission in order to ensure they reach their preventative potential. This requires ensuring regulatory teams have the relevant in-house expertise to fulfil these oversight duties and that researchers who intend to analyse the systemic risk of GBV have access to the data they need to conduct their research.  

Civil society is critical

While NCRM include preventative and educational approaches where public actors, such as public schools and universities, play a key role, much of what makes NCRM effective relies on a strong and stable ecosystem of NGOs and community-based organisations. In order for this ecosystem to fulfill its crucial role, organisations within it must be able to rely on consistent, appropriate and project-independent funding. As they fulfil a core role in supporting the state’s duty to protect human rights as established in international law, opportunities to access various forms of funding must be made available, with the upcoming agreement on the EU’s next Multi-Annual Financial Framework being a prime opportunity.

TFGBV is a multi-faceted phenomenon. It can  take on many forms, manifesting across diverse contexts and experiences, including in actions that may not rise to the level of illegal conduct, but which can nevertheless have a chilling effect on women and gender-diverse people’s speech. No single approach will succeed in tackling it. Criminalisation, as established for example in the VAW Directive, may be an appropriate response to some of the most egregious forms of gender based violence, both online and offline. But both where criminalisation is deemed inappropriate due to previously established concerns of overcriminalisation and of curtailment of the freedom of expression, as well as where criminal prosecution is chosen as an approach, NCRM are key tools. They are useful to complement criminal approaches as well as to provide remedies for non-criminal forms of violence, allowing for a holistic attempt to do right by survivors.