Based on three joint reports delivered to the UN Special Rapporteur on Violence Against Women (list of reports mentioned in the end of this article), Paz Peña and Joana Varon have compiled a series of recommendations willing to summarize core topics of those documents in order to feed the Rapporteur’s work towards a resolution on Technology-Related Violence Against Women with Latin American perspectives.
Considerations below have been made with the lenses of Latin American context. We consider context as an important variable to analyze gender violence. But while some recommendations shall be adapted to other places and realities around the globe, others are general enough to maintain Internet’s open and free architecture, as well as to promote fundamental human rights.
Acknowledge that technology-related violence against women occurs in a continuum between online and offline. While digitalization brings new challenges to overcome VAW, it is impossible to separate consequences of actions that occur in digital environments from the offline. Both spheres of life are a continuum, as well as are the expressions of violence that occur in these environments. The trivialization of expressions of violence that are technologically enabled due to the believe that they start and end in the online environments and, therefore, are ephemeral, is a mistaken approach that leads to impunity and amplification of the problem.
Recognize that social-economic and cultural challenges to guarantee access to justice; lack of sensitization of law enforcement agents and the judiciary to investigate and consider the cases of gender based violence; the unbalanced terms of services of social media platforms that operate mostly based in the rule of law of a few jurisdictions, particularly one that tends to consider hate speech as free speech, while censoring speech of sexual and reproductive rights; and the prevailing business model for online services based on collecting massive amounts of personal data are overarching structural challenges be consider for addressing any case of technology related gender-based violence.
Recognize that technology related violence against women is also an intersectional debate, once it has had particular effects if we consider class, race, non-binary gender persons and non-hetero expressions of sexuality, such as LBTQAI.
Recognize that, while solutions for addressing technology related VAW given by States and private sector have been insufficient and lead to an intense sense of impunity, community led initiatives, such as specialized help lines have been substantially important to provide support to those who have been attacked, as well as most comprehensive data about the current phenomenon. States and private sector shall engage in continuous consultation with this stakeholders in order to promote solutions that address concerns about gender equality, rights to privacy, freedom of expression and about maintaining the open, free and decentralized architecture of the Internet.
Recommendations for States:
● Promote Access to justice, capacity building and awareness raising within law enforcement agents and the judiciary
At least in the Latin American region, proposing new draft bills is almost a secondary call. As a more urgent matter, States shall guarantee that existent provisions are enforced and that procedural rules of the judiciary adequately cope with cases of technology related gender-based violence.
Police officers, prosecutors, judges and all officials working in the judiciary system must be trained to be able to deal with cases, avoiding the feeling of impunity and the common re-victimization of those who seek support. In other words, States should avoid institutional violence that produce psychological, social, judicial or economic damages to those who were targeted by technology related attacks based on gender discrimination. In this sense, States should develop specialized, clear, efficient and transparent internal and external protocols and conducts from it’s agents to better enable them to receive denounces, process, solve, document and report about these cases.
● Recognition and promotion of encryption, anonymity and data protection/minimization as important practices for protection against VAW
A wide variety of attacks that use technology as a mean for perpetuating gender-based violence take advantage of the massive amount of data about ourselves that is collected and available in the digital environments. Data minimization is an important concept for increasing security and enforcing the right to privacy, so important to ensure rights to freedom of expression and self determination. Therefore, States should promote the enforcement of strong data protection regulations, particularly stressing the role of informed consent, proportional to the extent of the service provided; the need for security measures and accountability of data holders for data breaches; as well as the agency of consumer to delete their data and withdraw consent.
Likewise, initiatives that seek to punish technology related violence against women should not criminalize the use of encryption or the necessary exercise of anonymity in the digital environments. Encryption and anonymity are an important tool for the exercise of freedom of expression, especially in political contexts that criminalize certain form of expression of sexual and reproductive rights. As Special Rapporteur David Kaye has stated in his report about encryption and anonymity “intentional flaws [in encryption] invariably undermine the security of all users online, since a backdoor, even if intended solely for government access, can be accessed by unauthorized entities, including other States or non-State actors. Given its widespread and indiscriminate impact, back-door access would affect, disproportionately, all online users”.
Due to the massive amount of data collected during our navigation, assuring complete anonymity in a level that would be hidden enough to trick law enforcement agents is not that simple. Law enforcement agents have enough technical and legal tools for surveillance and interception of communications to investigate and identify attackers. In fact, at least in Latin America, we have observed that in most of the cases, the attackers use their own names, the victim knows who they are or they could be easily identified by using such resources. Nevertheless, as mentioned in item one, lack of awareness and will have been a major obstacle for investigations to be installed, while anonymity has been used mostly as an illegitimate excuse.
States shall avoid promoting more surveillance powers, particularly without the establishment of sufficient controls and safeguards, such as requirement of a warrant, independent oversight and other measures that would guarantee the necessity and proportionality of such practices.
● Promotion of freedom of expression, while recognizing that racism and discrimination are not protected by this right
Freedom of expression is not an absolute right, as such, it should be balanced with other rights. Many countries have enforced such balance implementing laws against racism and discrimination. Nevertheless, the most used platforms are based in another jurisdiction in which freedom of expression have a strong prevalence of other rights. These jurisdictional conflicts makes enforcement of such provisions a challenge. In the other hand, platforms have also been implementing restrictions to freedom of expression based on cultural and moral that limits freedom of expression on women, particularly those engaged in the debate about gender equality and sexual and reproductive rights.
While IACHR and various UN rapporteurs have stated, in terms of freedom of expression and access to information, assigning liability to intermediaries for third-party content may mean that these platforms have incentives for censorship. States shall be encouraged to enforce their legislation against racism and discrimination, while promoting freedom of expression, as well as encourage platforms to review their theirs of services with particular lenses on a balanced approach to freedom of expression, gender equality and protection of privacy rights/privacy by default.
● Ensure the right to a remedy and reparation
Reparation should be proportional to the severity of the violations and the harm suffered. And to have real transformative reparations, they must operate on three levels: individual, institutional and structural. It is fundamental to ensure women’s participation (from different ethnicities, class, locations, and so on) in reparations discussions to ensure that initiatives are more likely to reflect their experience of violence and their concerns, priorities and needs regarding redress.
Importantly, reparation measures cannot rely only on compensation, but should include forms of restitution, rehabilitation, satisfaction, and guarantees of non-repetition, combining measures that are symbolic, material, individual, and collective, depending on circumstances and victim preferences.
Just as an example, some of these measures could be: a) Obligation to investigate the facts and identify, prosecute and punish those responsible for the violations; b) Guarantees of avoiding re-victimization in the judiciary process; c) Rehabilitation measures for family members of the victims of the case and the perpetrator(s) (psychological treatment, judicial representation, social attention, re-education to perpetrators on gender issues and human rights); among many others.
● Consider that, sometimes, it is not necessary to create new criminal offenses
That a crime is committed through electronic means does not always mean, necessarily, creating a new provision for a criminal offense. In various cases, the existing types of offenses are already sufficient to prosecute criminal conduct when it is committed using information and communication technologies; or, simply, a modification of the wording in this sense may be sufficient. Nevertheless, States shall promote the recognition of the gravity of technology related gender-based violence as a serious violation that should be treated with concern and incentives for investigation.
● Acknowledge that provisions that punish defamation have mostly served to silence voices of dissent, while they also represent a paternalistic approach that sometimes re-victimizes the person attacked
As the Inter-American Commission on Human Rights (IACHR) has noted, many public officials and other relevant public actors have called provisions about crimes against honor as a mechanism to discourage criticism and silence dissent. At the same time, the use of the concept “honor” to fight crimes where sexuality is involved is also, in itself, inappropriate. The conservative burden of this concept and its use against women’s freedom has been proven in many occasions.
● Seek for non-criminal alternatives and education on gender issues
States shall promote the understanding that a public policy to tackled technology related violence against women goes beyond creating new crimes or tougher penalties, and also includes educational and preventive approaches. States should to carry out education campaigns that promote gender equality, acknowledge the harm of several manifestations of technology related gender-based violence, repudiate the victims’ stigmatization and strengthen knowledge on these matters within their own State institutions, especially in related ministries, judicial system and police. The latter is particularly important in the Latin American region where some governments, dangerously, are starting to adopt the wrong and dangerous approaches to banish this kind of debate under the stigma of labeling them as “gender ideology”, instead of an issue of social welfare and development.
● Accountability, transparency and statistics:
States must periodically publish incident reports at national level. This is a great resource for legislators and officials working on public policies, as well as for academia and civil society. In addition, this resource would help to build a more appropriate and real contextual regional scenario. All statistical reports must be made in open data format and made available to the whole public.
Recommendations for private sector
Businesses have also responsibilities towards enforcing human rights. Technology related violence against women occurs on private platforms that often have solutions in their hands even before some cases are taken to court. In this sense, while States shall not increase intermediary liability to an extend that might lead to increase of surveillance and censorship, private sector can still play an important role considering to implement the following recommendations:
● Consider contextuality of the problem and foster regional consultations and debates with the affected profiles to address the issue
Online gender violence is highly contextual, and solutions offered for victims in one country do not necessarily make sense for the diverse realities of other countries, as the ones in Latin America and the Caribbean. Internet platforms that work in global markets should consult with communities of local experts and those women activists, journalists or simply those who have been attacked for being outspoken. Understand contextual problems is an important approach to offer useful tools and mechanisms that can cope with this type of gender violence.
Likewise, it is necessary for companies to review their policies from a critical gender perspective, with an intersectional approach. Not doing so would only mean protecting members of the hegemonic sectors and not taking seriously the evident and different problems of gender violence that happens across the diversity of its users.
● Promote accessibility and diversity within the tools to report abuses
Terms of Services and reporting tools should be in local languages; likewise, they should avoid technicalities and complicated language.
In addition, reporting tools should be easy to find. For example, on many platforms, reporting cases on non-consensual dissemination of intimate images could have multiple options to be reported: privacy, pornography, and even copyright. All these possibilities make it impossible for many people to find an adequate solution. An improvement would be to have a clear portal of information and denunciation of gender violence, as the ones implemented with copyright complaints by many internet platforms. Allowing and informing users to documentation of the harm to themselves is also recommendable.
● Guarantee that evaluation of denounces to take down content would have a final decision made by people effectively qualified to evaluate accordingly to the regional context and sensitive to intersectional approaches to gender issues
Companies must make a commitment to eradicate gender violence, without using censorship mechanisms. In this context, we highly discourage the use of automated mechanisms to delete contents because they don’t get yet the nuances of discourses and the number of false positives is still dangerous for freedom of expression. In that sense, people who is in charge to decide which content to take down or maintain should be sensitive to the context of the content, as well as to expressions of sexual and reproductive rights and gender equality.
● Research for technical solutions that are in compliance with fundamental human rights, particularly the rights to privacy, freedom of expression, as well as, the promotion to sexual and reproductive rights
Technological solutions that respond to the complexity and diversity of attacks are welcome as long as they are extremely careful, ethical and respectful with human rights of both their users and those who do not use their services. It’s design and implementation must be done in permanent dialogue with local communities, which can provide valuable feedback to the process.
Personal within these platforms that work to develop technical solutions should speak the local language of the communities they intended to help, know the cultural contexts of the region, and be professionally trained to work with cases of gender violence.
● Commit to provide due process for anyone who has been targeted by attacks or denounces
Platforms must also be agents of due process. Thus, they must provide clear information about processes, criteria and times, including their internal processes of accountability to manage these cases. For example, when someone report a case: what happens next?
No women who reports a case of gender violence should be left without answers or explanations (about criteria used in the decision of their case or any doubt in the process). Likewise, people who is notified of a behavior against a platform’s ToS, should be timely, clearly and correctly informed, and platforms should provide instances of appeal. Providing this kind of information can even be an educational experience for aggressors.
Likewise, platforms must commit themselves to make a follow up on reported cases of gender violence. This is the only way to truly evaluate effectiveness and efficiency of policies, tools and technologies implemented to stop online gender violence.
● Promote transparency providing data about denounces received, documentation, criteria and due process stages used to solve them
Internet platforms must take a decided step forward in transparency around their work on gender violence. First, in the criteria that is used to resolve reported cases of gender violence, as this is of special interest for the due process of victims and defendants.
Secondly, platforms must advance in making at least one annual report on the types of cases of gender violence reported by users, including numbers, country of origin, and all information that, taking care of the human rights of women and men involved, would allow actors interested to create evidence. It is also important to account for the information requests from national policies in these cases and the consequent responses from the companies.
● Promote education and digital security:
Internet platforms must commit to eradicating online gender violence. Not only because it is a human rights issue, but also because decreasing its frequency implies a direct benefit to companies. In this sense, platforms must allocate resources for information and education campaigns on prevent online gender violence. These campaigns must be contextual to the diverse cultural realities of its users, and constant over time. In this sense, we reiterate that platforms cannot be satisfied with “universal” campaigns that are just a translation into other languages; gender violence depends on the context and, therefore, platforms must make the effort of work in the regionalization of them beyond a simple translation of content.
*This document has been coordinated by Paz Peña and Joana Varon. You can find the original reports here:
- “Online Gender-Based Violence: Diagnosis, Solutions and Challenges”, coordinated by Coding Rights and InternetLab.
- “Reporte de la situación de América Latina sobre la violencia de género ejercida por medios electrónicos”, made by Derechos Digitales(Chile, Latinoamérica), Asociación por los Derechos Civiles (Argentina), Hiperderecho (Perú), InternetLab (Brasil), Coding Rights (Brasil), Tedic(Paraguay), Fundación Karisma (Colombia), Ipandetec (Panamá) y la Red en Defensa de los Derechos Digitales (México) and coordinated by Paz Peña.
- “Pornografía no consentida: ¿Cómo responden las plataformas privadas de internet a las usuarias de América Latina?”, made by Acoso.Online