Digital Violence Against Women: How UK Policy Frustrates Inclusive Cyberspace
Preface
In this independent research project for a Gender and Law Module, I holistically consider the evolution of violence against women in the UK. Within a conceptual amelioration approach, I touch upon policy development and develop multiple alternative arguments. This project garnered me top marks within the module and served as a bedrock for my eventual MPhil Research.
Introduction
Digital platforms have provided modern societies with new avenues for connection, self-expression and self-validation. However, as cyberspace continues to dynamically reconstruct society and become an integral part of “contemporary life and citizenship”, it increasingly represents a site of “ideological struggle” where online hate and harassment as contemporary violence against women (VAW) threatens the social reproduction of marginalising practices that harm and exclude women. Indeed, the Online Safety Bill 2022 highlights rising “abuse and hatred designed to silence women”. Through a UK case study approach, this essay engages this phenomenon in two parts. Firstly, this essay will unpack violence against women in cyberspace, drawing upon empirical evidence to show the implications of digital hate and harassment on two levels. This essay will then outline the current socio-legal responses to gendered online hate and harassment and argue that legal institutions have overlooked the systemic patriarchal nature and societal implications of VAW online. Thus, this essay posits firstly that current law and policy have frustrated calls for inclusive cyberspace and secondly that alternative responses are necessary for maintaining the UK's commitment to ending VAW and overcoming the patriarchal conceptions of “free speech” and “victim-blaming” that dominate cyberspace discourse. By applying a multidimensional approach that considers legal systems in the context of political economy, feminist activism and international instruments, this essay will establish how online hate and harassment harm women. assess current responses in law and policy, and argue that further developments are necessary for the UK to address this contemporary challenge in Gender and Law.
The State of Cyberspace
In charting the extent of online hate and harassment, the UK Council for Internet Safety has evaluated and categorised experiences into Cyberstalking, Cyberbullying/harassment, Revenge Pornography and Hate Speech, finding women at greater risk than men. This is not a uniquely British experience. For example, a 2017 US study found that 41% of its respondents had been personally subjected to online harassing behaviours with 66% having witnessed others being harassed. In that study, 21% per cent of women aged 18 to 29 reported being sexually harassed online, more than double that of men in the same age group (9%), and 53% reported receiving explicit images without consent. Among the 18 to 24 demographic, women were more than three times as likely to be sexually harassed online. Internationally, UN figures show that 73 per cent of women and girls have been exposed to or have experienced some form of online violence; women are 27 times more likely to be abused online than men; 61 per cent of online harassers are male. Thus, although this essay focuses on the UK, an understanding of Gendered cyberhate as contextualised within a broader “pandemic of gendered violence” is necessary for understanding the two-fold harms of digital VAW and the need for legal vigilance.
The first level of digital hate and harassment as violence against women is interpersonal direct harm between perpetrators and victims. Through the abusive acts of Cyberstalking, Cyberbullying/harassment, and Revenge Pornography, victims of online VAW suffer harm towards their “autonomy, identity, dignity and well-being”. Examples of direct harm to women include actions such as a) Cyberstalking by means of repeated email, text or messages through the internet. which combine to undermine the victim’s sense of safety and cause distress, fear or alarm. b) Revenge Porn, which involves the online distribution of non-consensual sexually graphic photographs or videos which intend to publicly shame and humiliate the victim and inflict damages on the target’s ‘real-world’ life c) Cyber harassment which includes unsolicited sexually explicit online messages; Inappropriate or offensive sexual advances; Threats of physical and/or sexual violence d) Hate speech, which involves using language that denigrates, insults, threatens or targets women on the basis of their gender,
However, a legal assessment of digital VAW needs to go beyond the direct harm it inflicts on its victims. This essay argues that the patterns and practices of digital hate and harassment should instead be understood as “a force with a political agenda” which causes “emotional, social, professional and political harm”. Digital VAW builds upon patriarchal foundations of power that exist within “specific contexts and relationships” to exploit existing power dynamics. In this view, the greater societal harm of digital VAW is such that it disenfranchises women, placing them on the margins of cyberspace. Thus, this essay posits a need for UK law and policy to recognise digital VAW as “an extension of patriarchy online” which systematically targets women through a process of “online othering”. Online hate and harassment encroaches into women's lives and spaces, extend violence as a “means of control and intimidation” and ultimately alters the terms between women as a group and wider society.
An assessment of VAW thus recognises that specific instances of hate and harassment merely represent the “micro-foundations of patriarchy”. This essay posits that online hate and harassment correspond with overarching patriarchal technological institutions and gendered forms of institutional policing that reinforce gendered constraints on behaviour. Per Green, online hate and harassment represent functional interactions that target dissenting actions and meet out discipline via identity. In this view, online hate and harassment directly attack women's “right to participate politically” in contemporary society and encompass a signalling function that communicates a message about the role they occupy beyond online recipients offline onto wider audiences of women in the UK, silencing them and “limiting their engagement”. Per Citron, a presumption that online VAW remains suspended in cyberspace with no effect on women’s offline lives and livelihoods would is misguided and comparable to arguments of the past that maintained spousal beating as a private matter with no significance beyond the home.
The impacts of online VAW as the othering practice of patriarchal ideologies is evident; women have been shown to censor their postings, limit their interactions and in extreme cases retreat completely from the digital sphere. Virtual communities and internet technologies operate to benefit privileged male identities and sustain unequal power relations. An example of this is the tech industry where empirical evidence has shown diminishing numbers of women representation. While women had accounted for 35% of computing jobs in 1990, this had fallen to 25% by 2015. In gaming, developers are largely male (76%) despite half their customers being women.
In this section, this essay has highlighted the patriarchal state of cyberspace. As hate and harassment work in tandem to systematically harm, silence and exclude women, UK law and policy have to structure a response which acknowledges “the global reach of the online sphere” while directly addressing the “exclusionary intent” behind digital VAW. Per Coombes, a failure to take all appropriate measures to prevent online hate and harassment would otherwise signal “tacit permission or encouragement of such acts”. In the next section, this essay will outline and give context to current socio-legal responses toward digital VAW.
Socio-Legal Responses to Violence Against Women Online
Digital Feminist Activism
The Internet has facilitated the emergence of a new generation of feminists who use cyberspace for both discussion and activism. Situated in a post-feminist cultural landscape where the transition from second to third-wave feminism had removed the notion of centrally organised politically motivated feminism from communities, digital feminist activism has emerged as a 4th wave call-out culture responding to the lack of institutional protection from digital VAW. From Steubenville to #MeToo, feminists recognised digital activism could function as a “do-it-yourself attempt at justice”, a means of galvanising marginalised individuals through collective consciousness-raising, which in turn facilitates expression, validation and affirmation.
Subscribing to similar overarching goals of “producing connections and solidarities”, challenging inequality and providing justice, digital feminist activism as a 4th wave of feminism thus represents a social response which has returned to the ideas of organised and politically motivated feminism. Crucially, digital feminism circumvents a prior criticism of over-reliance on the narratives of upper-middle-class white women and validates the contributions of intersectional young people who self-identify as fourth-wave feminists and attempt to revive activism within and through digital spaces. By providing a means of participation in a justice process, expression in being able to tell one’s story, validation and affirmation of the harms faced, vindication in communal condemnation of aggressor, and the imposition of accountability on aggressors, feminist digital activism as a social response to digital VAW builds upon the first and second waves of feminism as a “resistant and political act” while maintaining the third-waves focus on intersectional concerns. Thus, this essay contextualises the social emergence of digital feminist activism in the UK as an empowered counter public, actively maintained and connected through shared marginalised identity and committed to securing opportunities for purposeful participation, meaningful communication and social inclusion against digital VAW
Laws and Legislation: Current UK Strategies to end VAW
The UK’s response to digital VAW has been piecemeal, drawing upon different pieces of legislation to addresses cyberhate and harassment separately, ultimately failing to specifically address the overarching systematic nature and patriarchal implications of digital VAW. This essay highlights how cases of Cyberabuse such as DPP V Chambers and R V Nimmo and Sorley appealed to the Communications Act 2003, Cases of doxxing/cyberstalking appeal to the Protection from Harassment Act 1997 while cases of Revenge Pornography appeal to the Criminal Justice and Courts Act 2015.
A number of 2016 General Election manifestos covered the issues of internet regulation and online safety. As the Conservative Party manifesto iterated the ambition for the UK to become “the safest place to be online” and committed to developing a “digital charter” to “establish a new framework that balances user protection and user freedom within a regulatory framework of the law. Following the election, the government’s promise to end online harms duly made its way into the establishment. Consequently, the Department for Media, Culture and Sport (DCMS) published the Digital Charter in April 2018 which embodied a number of core elements, but specifically, it included the principle that “the same rights that people have offline must be protected online”
Today, the UK subscribes to a policy initiative as contained within the Digital Safety Charter, putting forth the concept of ‘online safety at the forefront of internet regulation in the UK. This advancement of an online safety agenda has included a recognition of the need to ensure that there was some form of legislative intervention to address online abuses, online harms and behaviours in a digital context which were not captured by the existing legal framework. Thus, the Government’s next step to tackle these pernicious issues has been to publish an Internet Safety Strategy in 2017, which in turn paved the way for the Online Safety Bill 2022.
While some credit is due to the UK’s policy recognition of cyber harms, there remains a striking failure in UK policy to recognise online abuse as a misogynistic and systematic form of VAW. As the significance, prevalence and impact of such online harms on “women as a group” have been glossed over with “a passing mention”, this frustrates the efforts of digital feminist activism and ignores the political economy of asymmetric gender dynamics within gender and technology. Instead, as recent governments have tended to favour self-regulation wherever possible and take what has been called a “multi-stakeholder approach”, this essay argues that this instead reflects a “neo-liberal patriarchy” within Gender and Law wherein the positive image of individual women as “self-reliant, responsible and accountable” in self-determination masks legal responsibilities to address cultural and systematic injustice against women, instead shifting the blame onto victims of digital VAW.
Failures in Law and Enforcement
The omission of gender aspects of abusive online behaviours have suggested a narrow and gender-exclusive approach which functionally relegates the phenomenon of digital VAW within the confines of a “private sphere on the margins of legal regulation” and refuses to acknowledge the right to cyberspace in contemporary citizenship as a means of conducting social and political life. Consequently, through “regulation by omission”, the Online Safety Bill 2022 has resulted in limited evolutions in legal institutions to adequately “combat such behaviours” and “provide effective remedies”. This essay posits that the impact of failures in law and policy will be two-fold.
Firstly, failure in law and policy trivialises the issues of digital VAW. Although legal institutions set standards of permissibility for norms, conduct and moral standards in ensuring a just society, the discounting of digital VAW that disproportionately affects women is a recurring pattern within the law and patriarchal society. Historically, criminal law has only chosen to address harms that most resembled harms faced by men. This can be traced all the way from the prosecution of rape law to the twentieth-century trivialisation of harms “associated with sexual harassment and domestic violence”. These shortcomings in policy are integrated, feeding into each other to generate “excuse-making and rationalism” that recasts victims of digital VAW as “overreacting” to harmless teasing and actively refusing to mitigate the harms of digital VAW by “ignoring the abuse or going offline” functionally denying them legal protections.
Secondly, failure in law and policy influences practices of underenforcement and legitimises the practice of victim-blaming in policing. In the UK, empirical evidence reflects how a lack of a comprehensive approach to addressing the patriarchal nature of digital VAW in policy has resulted in poor enforcement measures. Research shows that despite 1160 incidents of revenge porn reported within the first six months after its criminalisation in the U.K., 61 % resulted in no further actions pursued against potential perpetrators. The lack of direct focus on patriarchal power dynamics within digital VAW sustains the impacts of such actions by shifting the responsibility onto women and consequently legitimising responses which place blame and responsibility on the victim. Thus, Law and Policy in the UK have failed to overcome conceptions that women are choosing to be upset or being peculiarly sensitive, akin to Victorian-era ladies who fainted upon having heard the use of coarse language.
Poor enforcement and policing that involves advising women to “block offenders” and “delete Facebook” signals that digital VAW is not a big deal, that it is the woman victim who is responsible to resolve and avoid threats of digital VAW by self-policing, closing down their accounts and withdrawing from cyberspace, resulting in the perpetuation of digital VAW as online othering. Figures from the UN Broadband Commission reflect this trend, indicating that nearly 25% of women are blamed for falling victim to digital VAW and asserts the need for interventions in law and policy that address this destructive response’ which inflicts additional punishment on victims and fail to fully address the serious and rapidly worsening international phenomenon of digital VAW.
Arguments Towards an Inclusive Cyberspace
In this section, this essay posits two arguments within an understanding of Gender and Law that might direct law and policy toward more inclusive cyberspace. This essay will first engage the libertarian notion of free speech as a right and the potential for women’s counterspeech within Cyberspace discourse and argue for circumstances in which limiting free speech is justified. This essay will then in two-parts outline the potential for a rights-based approach to law and policy regarding digital VAW, grounding it within the UK’s international commitments.
Free Speech
The main argument against the regulation of digital VAW involves the claim that state limitations of free speech anywhere will result in a slippery slope of “nefarious censorship and Big Brother totalitarianism”. However, this essay argues that this argument is misguided as the question for UK Law in addressing digital VAW is one that is constrained to outlining “justified circumstances in limiting free speech” rather than answering the overarching question of whether “should speech be limited”. To this end, the two most important formulations that are invoked in discussing the use of coercive state power against freedom of expression are John Stuart Mill’s ‘harm principle’ and Joel Feinberg’s ‘offence principle’.
In arguing for the necessity of the state to pursue policies on online behaviour to restrict cases of digital VAW, this essay asserts firstly that the misogynistic cyber speech of harassment, stalking and abuse which make up digital VAW each represent actions that can cause harm and offence, and that recognition of the impacts of such speech as actions on women in society would affirm that the harm on the free speech of victims in allowing such actions would be greater than the harms against the free speech of perpetrators if regulated. Within an understanding of the two levels of harm in digital VAW alongside the UK’s commitments to “online safety”, this essay argues that the offence of digital VAW represents a targetted action against women as a group that causes real harm to their role in society.As this perpetuates the patriarchal distribution of political, economic, and social powers, as well as bolstering the culture of misogyny, further developments in digital law and policy are necessary to protect women’s free speech and foster inclusive cyberspace.
Further support for this argument can come from reference to the American case of Mitchell V Wilson which weighed the freedom of speech of a perpetrator against the freedom of speech of a victim and found legal action necessary as a result of the “distinct harm to victims and society that the defendant’s abusive conduct produces”. Thus this essay argues that greater UK legal policies which would prosecute perpetrators of digital VAW would go beyond the scope of free speech, instead punishing online attackers due to the social harm produced by their actions of targeting individuals on the basis of gender or race, and not due to the particular opinions that the attackers or victims express. In this view, developments in UK Law and Policy to address online hate and harassment as digital VAW are necessary for addressing perpetrators’ discriminatory intent and actions, extending the law “because of conduct, not bigoted ideas”
Secondly, this essay asserts that arguments for women to utilise their own digital free speech as a means of counterspeech against digital violence against women are misguided. As social identity and power play a role in whose speech is recognised as ‘credible’ and worth listening to and deferring to, the use of speech within the current state of cyberspace would reflect complex systems of misogyny and domination that deny women credibility and authority regarding their experiences of oppression. In an argument which parallels the legal debates on pornography as the silencing of women, this essay argues that as “the role occupied” by women within cyberspace are disenfranchised by digital VAW as speech-acts, women are consequently disallowed from “doing things” with their own speech-acts. In this view, the potential for counterspeech as a defence of not regulating digital violence against women is inherently flawed as such regulations would instead advance “the reasons why we protect free speech in the first place”.
A Rights-Based Approach
This essay argues that potential future developments in UK law and policy against digital violence against women should be centred around a civil rights-based approach that would go beyond “traditional criminal and tort remedies”. Here, this essay highlights how targeting inclusive cyberspace as a civil rights agenda would recognise and highlight instances of digital VAW as civil rights violations which are inflicted not just on women as victims, but on communities and society as a whole. Furthermore, a rights-based approach would then serve signalling functions, communicating a societal commitment to equality of treatment and opportunity that incentivises victims to come forward and pursue criminal charges. Thus, this essay argues that a recommended approach through a “cyber civil rights agenda” that changes the way law enforcement and criminal law perceive digital VAW would address the two levels of harm in digital VAW. For the victim, this approach would validate their experiences and provide restitution for the damage to their “identity, dignity and well-being” while galvanising others to offset the effect of online othering, eroding online subcultures of discrimination and instilling ideals of equality and dignity.
This approach would also be in keeping with international instruments that outline the UK's commitment to regulate activities entailing violence against women is established under the “due diligence obligation” of States through the Declaration on the Elimination of Violence Against Women Article 4(c) and CEDAW General Recommendation No. 35. Thus, this essay argues that it is only through developing a rights-based approach could the UK maintain its local and international commitments. The UK must evolve and recognise the importance of inclusive cyber participation and how digital VAW as a fundamental attack on human dignity “deprives individuals of fundamental human rights”, “restricts autonomous development of personality”, and perpetuates patriarchal inequalities. Within a rights-based approach, women’s human rights regarding digital VAW then circumvents the false dichotomy of online/offline harms, becoming a matter that the UK has legal and moral obligations to address.
Conclusion
Advancements in technology will continue to strengthen the centrality of digital technologies in our everyday lives. The fight for the rights of women to meaningfully engage in cyberspace has just begun. In pursuing justice and equality, the law will need to continually adapt to address contemporary forms of discrimination, misogyny and violence against women. This essay has provided a linear assessment of this phenomenon within the case of the UK. Having outlined the state of cyberspace and contextualised the harm of digital violence against women on two levels, this essay has critically analysed the limitations of current UK Law and Policy in supporting digital feminist activism and addressing the institutional consequences of digital violence against women. This essay has outlined a multi-faceted analysis of cyberspace which accounts for the relationship between legal institutions, international instruments, patriarchal ideologies and the political economy. Consequently, this essay has advanced an argument for a right-based approach to addressing digital violence against women which adheres to a liberal understanding of freedom of speech.
