Image-Based Sexual Abuse Content and How to Delete It - From the E-Commerce Directive to the Digital Services Act

• Author: Ciara Barbara O'Rourke
• Position: BCL Law & Irish (UCC), LLM European Law (Maastricht University)
• Pages: 47-78

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IMAGE-BASED SEXUAL ABUSE CONTENT AND HOW TO DELETE IT - FROM

THE E-COMMERCE DIRECTIVE TO THE DIGITAL SERVICES ACT

Ciara Barbara O’Rourke*

A INTRODUCTION

Using internet technology to perpetrate violence against women is a phenomenon referred to

as ‘Online Violence Against Women’ (OVAW).

1

Image-based sexual abuse (IBSA) is one of

several manifestations of OVAW.

2

IBSA is a gendered phenomenon commonly known as

‘revenge porn’.

3

There have been calls for stronger regulation of the companies which provide the online

services (known as intermediaries) that are used to perpetrate IBSA.

4

The legal instrument

regulating the liability of intermediaries for the content they host in the European Union (EU)

is the E-Commerce Directive (ECD).

5

In December 2020, the European Commission (the

Commission) published its proposal for a Digital Services Act (DSA), a regulation to amend

the ECD.

6

* BCL Law & Irish (UCC), LLM European Law (Maastricht University). I am extremely grateful to my family

and friends for their constant support and encouragement throughout my studies. Further thanks to the Editorial

Board and to Professor Catalina Goanta and Andreea Grigoriu for their guidance on this topic.

1

Kim Barker and Olga Jurasz, ‘Online Violence Against Women as an Obstacle to Gender Equality: A Critical

View from Europe’ (2020) 1 European Equality Law Review 47.

2

Other manifestations include inter alia online-harassment and cyber-stalking; see ibid 49.

3

Clare McGlynn and Erika Rackley, ‘Image Based Sexual Abuse’ (2017) 37(3) Oxford Journal of Legal Studies

534, 534; Sophie Maddocks, ‘From Non-Consensual Pornography to Image-Based Sexual Abuse: Charting the

Course of a Problem with Many Names’ (2018) 33(97) Australian Feminist Studies 345; Directorate-General for

Justice and Consumers, ‘2021 Report on Gender Equality in the EU’ (European Union, 2021) 10 <https://ec.eur

opa.eu/info/sites/default/files/aid_development_cooperation_fundamental_rights/annual_report_ge_2021_printa

ble_en_0.pdf> accessed 24 March 2022; United Nations General Assembly, ‘Report of the Special Rapporteur on

Violence Against Women, its Causes and Consequences on Online Violence Against Women and Girls from a

Human Rights Perspective’ (Human Rights Council, 2018) UN Doc A/HRC/38/47

<https://undocs.org/A/HRC/38/47> accessed 24 March 2022; Council of Europe ‘Cybercrime Conve ntion

Committee; Working Group on Cyberbullying and Other Forms of Online Violence, Especially Against Women

and Children, Mapping Study on Cyberviolence’ (2018) T-CY(2017)10, 7 <https://rm.coe.int/t-cy-2017-10-cbg-

study-provisional/16808c4914> accessed 24 March 2022.

4

United Nations General Assembly (n 3) paras 98, 99; Jennifer O’Connell, ‘They Were Putting Up Photos of

Girls Nude From th e Neck Down, Insinuating it Was Me’ Irish Times (Dublin, 17 April 2021)

<https://www.irishtimes.com/life-and-style/people/they-were-putting-up-photos-of-girls-nude-from-the-neck-

down-insinuating-it-was-me-1.4538353> accessed 24 March 2022.

5

Council Directive (EC) 2000/31 of 8 June 2000 on certain legal aspects of information society services, in

particular electronic commerce, in the Internal Market [2000] OJ L178/1 (E-Commerce Directive).

6

European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on a Single

Market for Dig ital Services (Digital Services Act) and amending Directi ve 2000/31/EC’ COM (2020) 8 25 final

1.

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Gender equality and non-discrimination on the basis of sex are core values enshrined in EU

law,

7

and the Commission has consistently referred to the DSA as a legal instrument which

will clarify what is expected of intermediaries in respect of OVAW (including IBSA), and

thereby ‘[make] the internet safer for women’.

8

Notwithstanding these assertions, the EU is not

known to have assessed how the current instrument for regulating online content, the ECD,

functions in relation to IBSA.

9

Because new efforts to regulate online content will build on

existing systems, it is important to understand those systems.

10

Further, it has been found that

regardless of jurisdiction and without exception, removing their private sexual images (PSI)

from the internet is IBSA victims’ top priority.

11

Therefore, this article explores the

accessibility and effectiveness of the content-removal mechanisms currently available to IBSA

victims after an image has been posted online and how this might change under the proposed

Digital Services Act.

Firstly, this article discusses IBSA and outlines the EU’s current legal framework for

intermediary liability. Secondly, the author examines whether IBSA victims can access

content-removal mechanisms by fulfilling the personal, material, and territorial scopes of the

ECD and analyses the mechanisms the ECD provides for removing IBSA content.

Subsequently, the same issues are examined but applying the DSA rather than the ECD.

Finally, this article discusses the findings emerging from the previous two sections.

B IMAGE-BASED SEXUAL ABUSE

Before addressing issues of intermediary liability, it is useful to understand the gendered nature

of IBSA, the harm it causes and how it operates.

7

Consolidated Version of The Treaty on European Union [2012] OJ C326/13, article 2; Consolidated Version of

The Treaty on the Functioning of the European Union [2012] OJ C326/47, article 8; Charter of Fundamen tal

Rights of the European Union [2000] OJ C 364/1, articles 21, 23.

8

Helena Dalli, ‘Pa rliamentary Questions Answer on behalf of the Commission, Questio n Reference: E-

002184/2020’ (European Parliament, 13 August 2020) <https://www.europarl.europa.eu/doceo/document/E-9-

2020-002184-ASW_EN.html> accessed 24 March 2022; European Commission, ‘A Union of Equality: Gender

Equality Strategy 2020 – 2025’ COM (2020) 152 final, 5; Directorate-General for Justice and Consumers (n 3) 2,

10, 37.

9

O’Connell and Bakina’s article briefly exa mines removing IBSA through the ECD but focuses on identifying

IBSA as a form of intellectual property and the full range of removal mechanisms available as a consequence

thereof. See Aislinn O’Connell and Ksenia Bakina, ‘Using IP Rights to Protect Human Rights: Copyright for

‘Revenge Porn’ Removal’ (2020) 40 Legal Studies 442.

10

Daphne Keller and Paddy Leersen, ‘Fact s and Where to Find Them: Empirical Research on Internet Platforms

and Content Moderation’ in Nathaniel Pesily and Joshua A Tucker (eds) , Social Media and Democracy: The

State of the Field, Prospects for Reform (Cambridge University Press 2020) 220.

11

Erika Rackley and others ‘Seeking Justice and Redress for Victim-Survivors of Image-Based Sexual Abuse’

(2021) 29(3) Feminist Legal Studies 293 <https://link.springer.com/article/10.1007/s10691-021-09460-8#citeas>

accessed 24 March 2022; see also, O’Connell and Bakina (n 9) 449.

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I Image-Based Sexual Abuse is Gendered

Organisations including the United Nations, the Commission and the Council of Europe

recognise IBSA as a form of sexual and gender-based violence.

12

Literature overwhelmingly

asserts that IBSA victims are mostly women while men are disproportionately the

perpetrators.

13

A 2014 survey found that 20% of 18-29 year-old women in the EU have

experienced sexual cyber-harassment.

14

In 2018, a study on cyber-violence and hate speech

online against women in the EU identified IBSA as a threat to women.

15

II Naming the Problem

IBSA was an internet phenomenon in the early 2000s,

16

but ‘revenge porn’ began attracting

media and academic attention in 2010 following the creation of the notorious website

‘isanyoneup.com’ which encouraged users to non-consensually post PSI of former partners on

the website in revenge for ending a relationship.

17

Twelve years later, IBSA still lacks an

established, harmonised vocabulary. This complicates discussions on what exactly is at issue

12

McGlynn and Rackley (n 3) 537; Di rectorate-General for Justice and Consumers (n 3) 10; United Nations

General Assembly (n 3); Council of Europe (n 3) 7.

13

Elena Sharrat, ‘Intimate Image Abuse in Adults and Under 18s: A Comparative Analysis of Cases Dealt with

by the Revenge Porn Helpline and Professionals Online Safety Helpline’ (South West Grid for Learning, 2019)

<https://swgfl.org.uk/assets/documents/intimate-image-abuse-in-adults-and-under-18s.pdf> accessed 24 March

2022; Zak Franklin, ‘Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity

by Operators of Revenge Porn Websites’ (2014) 102 California Law Review 1303, 1308; McGlynn and Rackley

(n 3) 544; Mary C Franks, ‘Drafting an Effective “Revenge Porn” Law: A Guide for Legislators’ (2016) Cyber

Civil Rights Initiative.<https://www.cybercivilrights.org/wp-content/uploads/2016/09/Guide-for-Legislators-

9.16.pdf> accessed 24 March 2022; Sarah Bloom, ‘No Vengeance for 'Revenge Po rn' Victims: Unraveling Why

this Latest Female-Centric, Intimate-Partner Offense is Still Legal, and Why We Should Criminalize It’ (2014)

42 Fordham Urban Law Journal 233, 239. In contrast, one Australi an study found a difference of 0.7% in

victimisation rates between men and women: Anastasia Powell and others, ‘Image-based sexual abuse: An

International Study of Victims and Perpetrators: A Summary Report’ (Royal Melbourne Institute of Technology

, 2020) 5 <https://www.researchgate.net/publication/339488012_Image-

based_sexual_abuse_An_international_study_of_victims_and_perpetrators> accessed 24 March 2022.

14

European Union Agency for Fundamental Rights, ‘Violence Against Women: An EU-wide Survey’ (2014) 106

<https://fra.europa.eu/sites/default/files/fra_uploads/fra-2014-vaw-survey-main-results-apr14_en.pdf> accessed

24 March 2022.

15

Adriane Van Der Wilk, ‘Cyber Violence and Hate Speech Online Against Women’ (2018) Study for the FEMM

Committee (Policy Department for Citizens’ Rights and Constitutional Affairs) 10 <https://www.europarl.europ

a.eu/RegData/etudes/STUD/2018/604979/IPOL_STU(2018)604979_EN.pdf > accessed 24 March 2022.

16

Alexa Tsoulis-Reay, ‘A Brief History of Revenge Porn’ New York Magazine (New York, 19 July 2013)

<https://nymag.com/news/features/sex/revenge-porn-2013-7/> accessed 24 March 2022.

17

Antoinette Raffaela Huber, ‘Women, Image Based Sexual Abuse and the Pursuit of Justice’ (PhD Thesis,

Liverpool John Moores University, 2020) 31

<http://researchonline.ljmu.ac.uk/id/eprint/12955/1/2020HuberPhD.pdf> accessed 24 March 2022; Alex Morris,

‘Hunter Moore: The Most Hated Man on the Internet’ Rolling Stone (New York, 13 November 2012)

<https://www.rollingstone.com/culture/culture-news/hunter-moore-the-most-hated-man-on-the-internet-

184668/> accessed 24 March 2022; Dave Lee, ‘IsAnyoneUp ’s Hunter Moore: “The Net’s Most Hated Man’’’

BBC (London, 20 April 2012) <https://www.bbc.com/news/technology-17784232 > accessed 24 March 2022.