Article 346 on revenge pornography was annexed to the Greek Criminal Code and the image-based sexual abuse as a form of gender-based violence in the digital era

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31/07/2022

It is true that the new Article 346 annexed to the Greek Criminal Code[1]– a legislative decision that we welcome as DATAWO- received positive reviews. However, we are concerned regarding the effectiveness and practical implementation of this article, as well as the conceptualisation of “revenge pornography” as a form of gender-based violence in the digital era.

-How is “gender-based violence in the digital era” defined?

Very often, both in academia and in political debates in the European Parliament, the Council of Europe and the United Nations, the terms “online violence against women”, “cyberviolence” or “technology-assisted/facilitated violence” are used. However, none of these terms are inclusive, as gender-based violence is not female-oriented, namely it is not only perpetrated against women (on which the UN Women Report focuses), but also against other genders and men, and it does not occur only online (the Internet or cyberspace), but is facilitated both by the use of the Internet and the digital means, either disjunctively or cumulatively.

Therefore, the definition of “gender-based violence in the digital era” extends to any act of gender-based violence that is committed, facilitated, or aggravated in part or in whole by the use of ICT (Information and Communication Technologies), such as mobile phones and smartphones, the Internet, social media platforms or email, because of the gender of the person it is directed against.

Moreover, it is worth noting that according to the survey conducted by the European Organisation for Fundamental Human Rights (commonly known as FRA) in 2014 entitled “Violence against women”, 61% of women employed in the service sector have suffered sexual harassment, while 20% of young women (between 18 and 29) in the European Union have experienced cyber harassment, while according to the European Parliament Research Center survey conducted in 2020, 1 in 2 women have experienced some form of gender-based violence in the digital era. In addition, according to statistics, 1 in 10 women have been sexually harassed or stalked while using new technology. Furthermore, the European Commission, recognising the serious effects of gender-based violence as well as the goals set at the international and European levels for its elimination, prepared a legislative initiative report on the “Proposal for a Council decision on the classification of gender-based violence as a new area of criminality referred to in Article 83(1) TFEU’. Finally, in the new proposal for a Directive of the European Parliament and of the Council 2022/0066, the need for legislative provision of forms of online gender-based violence/cyberviolence is emphasised.

– Image-based sexual abuse in the digital era

“Image-based sexual abuse” refers to the consensual or non-consensual creation and distribution/sharing of audiovisual material with erotic content (McGlynn & Rackley, 2017). It has been the subject of legal reform in the UK, Australia, Canada, France, Israel and Japan (Flynn & Henry, 2019). In fact, as previously mentioned, it has become a legislative priority for the European Union as well, aiming to deal with it, to limit cases of sexual abuse or other forms of gender-based violence in the digital era.

As it follows from the definition given in the context of the typology of the specific offense, the consent of the depicted persons is required in two stages: both for the creation of the audio-visual material and for the distribution/publication of this material. It is important to emphasise at this point that consent must be expressed and specific (for example it may relate to the distribution of this material to specific individuals/groups of individuals) and may be withdrawn at any later time under Article 7(3) in conjunction with Article 9 paragraph 2 subsection a’ of the General Data Protection Regulation, as well as its Explanatory Report.

-Statistics

According to a study conducted in 2020 in Australia, 1 in 3 respondents has experienced image-based sexual abuse, with young people aged 20 to 29 being the most frequent survivors. In addition, 1 in 6 people has committed image-based sexual abuse. Additionally, men appear to be more frequent offenders than women and have different motivations. Usually, the perpetrators are known to the survivors, and the most common places/means of distribution of such material are websites, social media, email, and mobile phone messages.

Distinction from revenge pornography

The term “revenge pornography” refers to consensual or non-consensual pornography that involves the online display of sexually graphic photos or videos without the consent of the person appearing in the images for revenge purposes (usually published/shared by an ex-partner). According to the European Agency for Gender Equality, the perpetrator is often an ex-partner who obtains images or videos during a previous relationship and intends to publicly expose and humiliate the victim in retaliation for ending the relationship. However, perpetrators are not necessarily partners or ex-partners, and the motive is not always revenge (commonly known as ‘non-consensual pornography’).

Therefore, comparing “image-based sexual abuse” with “revenge pornography”, we find out that in the commission of the first offense both consent to the creation of the audio-visual material with erotic/sexual content and consent to its distribution/publication may be absent, while in the case of the second offense consent has been given for the creation of this material, but not for its distribution/disclosure to third parties (other than the depictured people). Moreover, in the absence of consent in both stages described above, there is not a case of “non-consensual pornography”, where only the absence of express consent is needed for the creation of the audiovisual material with sexual content. That is, even if one of the depicted persons does not consent to the video recording/taking of photos of the sexual act.

More than that, there is intention for “revenge pornography” when the purpose of distributing/sharing the audio-visual material is the perpetrator to take revenge, while “image-based sexual abuse” can be also committed negligently, in case for instance  it is wrongly attached as a file in an email (always under review). Or the sharing of the material may be initiated by the depicted person themselves without their knowledge (in the case of hacking/malicious and illegal access to electronic files or even accidentally after the prolonged touch of the screen of the phone which leads to the unlock of the phone and then to the sharing of the material as a story/post on social media). In any case, the further distribution/publication of such material (as it may have been saved by an individual), constitutes the crime of “image-based sexual abuse”, as public posting/publication of such material even for a few seconds/minutes does not imply that the depicted person has consented to the further distribution/disclosure of the material to third parties.

– Examples of image-based sexual abuse

• Taking an image/Recording of an erotic/sexual act without the consent of the person participating in it and distributing/sharing this material to third parties.

• Distribution/Publication of audiovisual material with erotic/sexual content without the consent of all depicted persons who have consented to the creation of such material.

• Taking an image/Recording of an erotic/sexual act with the consent of the depicted persons and distribution/disclosure of this material to third parties for financial gain/reasons of revenge/satisfaction of erotic desires/”fun”.

• Non-destruction of audio-visual material with erotic/sexual content originally created with the consent of all/some depicted persons and its distribution/sharing to third parties.

• Distribution/Sharing to third parties outside of the group that shared this material.

• Storing and distributing/disclosing to third parties a screenshot of such material being posted by the depicted person.

• Failure to remove publication of material despite the express statement of opposition/withdrawal of consent of the depicted person.

-Damage caused by image-based sexual abuse to the survivors

Violation of dignity, personality, privacy, and personal data is evident from the commission of this offense. In addition, emotional distress, defamation, loss of employment opportunities, or when image-based sexual abuse occurs in the context of domestic violence/non-consensual sexual acts, i.e. rape, are consequences of the commission of this offense and must be taken seriously by both the legislature as well as by the judiciary in the administration of justice. Moreover, the duration of the distribution/publication of this material, both with the knowledge and without the knowledge of the depicted person, must be considered aggravatingly, since in several cases the survivor becomes aware of the distribution/publication later, perhaps even after many years.

More than that, it is not simply about the distribution/publication of this material, photos, or videos, but about the abuse that this act causes, in psychology (such as depression, paranoia, stress, suicidal ideation, and post-traumatic stress disorder), in social reputation, in work or educational environment, in the very personality of the person depicted in it. This abuse is very violent and traumatic. Even more so when gathering evidence is difficult (requiring the assistance of people with technical knowledge in Computer Science and digital systems), police response is slow/unsupportive/discouraging, society stigmatises the survivors for the “immoral” acts they have committed, (mainly the female survivors) sexuality is negatively charged and punished…. In this way, not only harm is caused to the survivor, but also democratic values and fundamental human rights are undermined.

– Concluding remarks

To sum up, Article 346 of the Greek Criminal Code was annexed as an attempt to deal with incidents of gender-based violence in the digital era, especially image-based sexual abuse. However, the use of the term “revenge pornography” is incorrect. As explained in detail earlier, the use of this conceptualisation overlooks the more common, everyday forms of visual sexual abuse, while the term “revenge pornography” refers to specific cases where this material has been distributed/shared for revenge purposes, excepting the cases where this offense has been committed for personal or financial reasons.

Also, the use of the term “without right” is incorrect and not at all inclusive, as an explicit reference should be made to the term “consent”. Finally, the restrictive reference to the term “non-public act”, leaves out cases of online voyeurism (creepshots and upskirting), where people are videotaped/photographed without their knowledge in a public place, while the camera is aimed at genital areas. Also, performing sexual acts in a public place does not give any person the right to videotape/take photos, nor to further distribute/publicise this material.

In conclusion, the legislation must be enriched and developed according to current issues and the most modern development/use of technology and the Internet. It must provide immediate redress mechanisms (for example, removing this material from the cyberspace), promote cooperation between the prosecuting authorities of Greece and those abroad, create psychological and social support services for survivors of gender-based violence in the digital era with appropriately trained personnel, and facilitate the administration of justice with the use of digital evidence, without the secondary victimisation of the survivors.

Anastasia Karagianni

Certified Lawyer in the Bar Association of Thessaloniki

Co-founder of DATAWO


[1] The new Article was annexed as an addendum to the draft law on the “Incorporation of Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of means of payment other than cash and replacing the decision -framework 2001/413/JHA of the Council”.

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