April 22, 2025
By Catherine Van de Heyning
As society digitalised, so did gender-based violence. Technology-facilitated gender-based violence (TFGBV) has become an unfortunate byproduct of digitalisation. The European Court of Human Rights (ECtHR) already recognised that cyberviolence may amount to a violation of the right to privacy and, in some instances, even to degrading and inhuman treatment. In the case M.Ș.D. v. Romania, the Court further delineated member states’ positive obligations to address cyberviolence. In this case, the ECtHR consolidated the lines set out in the previous milestone cases Volodina v. Russia (1) and (2) and Buturugă v. Romania. In these cases, the Court argued that the contracting states have a positive obligation to criminalise, investigate, and stop technology-facilitated violence. However, in the case M.Ș.D. v. Romania, the Court stopped short in giving further guidance as to criminalising TFGBV.
During the summer of 2016, 18-year-old M. Ș. D. met 20-year-old V. C. A. on social media. They had a short romantic relationship both online and in person. After their breakup, M. Ș. D. became a target of cyberviolence from V. C. A., who made fake accounts to share intimate images she had sent him. He also posted these images on escort websites with her personal details, leading to unwanted contact from people seeking sexual services. M. Ș. D. filed a police complaint in October 2016, but the investigation on harassment, violation of the privacy of the victim, and computer-related forgery took two years to conclude. It only progressed after media attention, leading to its finalisation by mid-2020.
The public prosecutor closed the investigation into harassment claims due to the expiration of the statutory limitation period. Further, the prosecution found that V. C. A. had not violated the applicant’s privacy since he received the intimate images with consent. Finally, the case of computer-related forgery was also dropped, as the prosecution argued that pursuing it would harm the victim by forcing her to relive past events, and further prosecution would be excessive for V. C. A. Instead, a public apology and 60 days of unpaid work were deemed sufficient punishment. The District Court requested the prosecution to reopen the investigation. This resulted, however, in another investigation closure in 2020. Ultimately, the District Court noted the limitation period had expired and closed the case again.
The core argument of the applicant was that the authorities had failed their positive obligations under Article 8 ECHR because (i) the national legal system did not effectively prohibit or criminalise online harassment, particularly non-consensual dissemination of intimate images (NCII), (ii) the authorities failed to provide effective protection in respect of the online harassment she suffered because of the actions of V.C.A., and (iii) did not conduct an effective investigation. The Court examined whether Romania had a solid legal framework and conducted effective criminal investigations. It found that Romania did not meet its obligations under Article 8 ECHR due to an inadequate framework and poor handling of the case, showing reluctance to perform a quick and thorough investigation (para 158).
The applicant, relying on Article 8 of the Convention, claimed that national authorities failed to protect her right to privacy and intimacy due to an inadequate legal framework. Her argument was two-fold. First, she argued that the authorities misinterpreted national legislation and disregarded domestic doctrine on the existing legal framework that could have given her broader protection against the non-consensual dissemination of intimate images by the perpetrator. Second, she held that the legal framework had in itself been inadequate in that it did not provide a full protection against online harassment, e.g. excluding the posting of images and personal data on escort websites.
In previous case law (Volodina v. Russia (1) and (2) and Buturugă v. Romania), the ECtHR had already accepted that cyberviolence, including image-based sexual abuse such as NCII, constitutes a serious violation of Article 8 ECHR. While the Contracting States dispose of a margin of appreciation to decide on the adequate means to tackle cyberviolence, the Court held that the impact and seriousness of the breaches of the physical and psychological integrity of the victim require measures in the form of ‘effective deterrence’ in the form of criminalisation. In the case at hand, the Court argued that the acts were capable of causing the applicant psychological trauma, damage and emotional instability, and of instilling anxiety and fear (para 123). Given the sufficiently serious nature of the perpetrator’s acts, the ECtHR required a criminal-law response by the domestic authorities (para 125).
Romania claimed effective protection was ensured through its criminal code, addressing the protection of private life, harassment, and computer-related forgery. The Court rejected the argument, highlighting that the national prosecuting and judicial authorities themselves had claimed that not all constituent elements of these criminal provisions were present in the case (para 128 and para 135). In a case of 24 June 2021, the Romanian Court of Cassation ended speculation in case law and academic literature by indicating that the non-consensual dissemination of intimate images could be sanctioned by the criminal provision on the protection of private life. However, as the ECtHR noted, this judgment was delivered after the proceedings in the applicant’s case had ended (para 131). The same goes for a new Romanian law explicitly offering protection for victims of NCII (para 132). Therefore, the Court decided that the legal framework did not provide adequate protection at the time of the case.
When addressing the criminal investigation, the Court reiterated the requirements of a prompt and thorough investigation. Romania argued that the length of the police investigation was due to the evasive attitude of the victim. After submitting a complaint and additional evidence, she had not responded to additional requests for interrogations. The ECtHR rejected this claim, stating that the victim’s behaviour was due to anxiety, emotional instability, and the harassment by V.C.A. and others, as well as the police officer’s discouragement to continue the case (para 142). Further, the Court noted that only after the victim was assisted by a lawyer and the case gained media attention, the case was taken up by the prosecution (para 145 – 146). Nevertheless, this did not result in prompt and diligent prosecution.
Rather than fully developing the evaluation of the police and prosecutor’s failure, the Court relied on the judgment of the Romanian District Court in that sense to conclude that the national authorities had failed to conduct an effective investigation because of the lack of an objective and impartial analysis of the case (para 149). The Court noted that the prosecutor’s office had refused to follow the District Court’s instructions, which, according to the ECtHR, showed the lack of ‘ability and willingness’ to conduct a prompt and thorough investigation (para 154). This phrasing suggests that the failure to promptly and thoroughly investigate and prosecute the case was not solely due to intrinsic procedural shortcomings but was also deliberate due to a lack of recognition of the serious nature of the offense, the impact on the victim, and the vulnerability of the applicant. The Court even went a step further, arguing that the shortcomings in the case shed doubts on the ability of the national authorities ‘legal machinery to produce sufficiently deterrent effects to protect victims, such as the applicants, from such acts allowing the perpetrators to escape accountability’ (para 156).
With the case of M.Ș.D. v. Romania, the Court further strengthens the line of case law regarding the positive obligations of contracting parties to prevent and act against gender-based violence, including technology-facilitated forms. In the case Volodina v. Russia (1), the Court accepted that forms of TFGBV, such as digital surveillance and the non-consensual dissemination of intimate images, could amount to degrading and inhuman treatment if in combination with controlling and coercive behaviour (para 75). However, in that case, the Court still argued that the NCII constituted a ‘relatively minor offence’ in view of other forms of gender-based violence (para 94). A further step was taken in the case Buturugă v. Romania, where the court argued that several forms of technology-facilitated forms of harassment and transgressions of cyberprivacy constituted aspects of violence against women and girls which warrant an effective investigation by contracting parties under Article 8 ECHR. The Court for the first time recognised the serious impact of TFGBV on the personal integrity of victims in the case Volodina v. Russia (2). It was argued that cyberviolence, cyberharassment, and malicious impersonation are forms of violence against women and children ‘capable of undermining their physical and psychological integrity in view of their vulnerability’ (para 47). The impact of TFGBV requires the contracting states to set up an effective legal framework and ensure effective remedies. Moreover, given the particular seriousness of certain forms of TFGBV, such as NCII, the Court requires contracting states to criminalise forms of cyberviolence (para 57).
M.Ș.D. v. Romania offered a new possibility to further develop the requirements to effectively legislate and investigate acts of serious cyberviolence. Romania enacted criminal provisions that could in theory be applied to TFGBV but failed to protect the victims in practice. The applicant argued that there was not only a lack of willingness of the national authorities to apply the existing legal framework, but that the legal framework in itself was deficient. At the time of the prosecution, there was uncertainty as to whether the provision on the protection of private life applied to cases of NCII and online harassment. The ECtHR accepted that the Romanian legal framework was inadequate, arguing that the national authorities themselves held that the legal framework did not apply to the TFGBV suffered by the applicant. Thereby, the Court cautiously limited itself to finding the legal framework inadequate in the concrete case without providing future-oriented guidance on what effective protection against TFGBV would entail (yet, hinting at the discussion in para 132 – 134). This stands in contrast to the more general reasoning of the Court that contracting parties have a margin of appreciation as to the means of securing protection under Article 8 ECHR, but that this margin is narrow when the activities at stake involve a most intimate aspect of private life (para 117). The same cautious approach can be found in the Court’s analysis of the effectiveness of the criminal investigation and prosecution in the case at hand. The Court fully relies on the findings of the Romanian District Court to conclude that the prosecution was ineffective. Again, the Court highlights the reasons why the investigation was ineffective in the specific case of the applicants, without delineating more broadly the positive obligations to comply with Article 8 ECHR when investigating TFGBV.
This cautious approach may surprise, given the more forceful delineation of the positive obligations of the contracting parties under Article 8 ECHR in the previous Volodina v. Russia (2) case. In the meantime, further guidance was provided by the interpretation of the Council of Europe’s Istanbul Convention on Violence against Women and Domestic Violence, to which Romania is a Contracting Party. The Council of Europe Expert Group on Action against Violence against Women and Domestic Violence (GREVIO) focused its first Recommendation to the Istanbul Convention on the digital dimension of violence against women. Yet, there was no reference to the Istanbul’s Convention or GREVIO’s recommendation in the further development of the positive obligations of Contracting Parties under Article 8 ECHR faced with TFGBV. Relevant to the case is GREVIO’s recommendation requesting Contracting Parties to ensure that victims of violence against women perpetrated in the digital sphere have effective access to criminal justice systems and that the authorities adequately respond to such cases, including by applying criminal law and, as appropriate, ex officio prosecution. As such, the mere fact that the applicant was to push for further investigation and that her limited engagement at the start of the investigation could therefore have been construed as a violation of Article 8 ECHR read in the light of the evolving interpretation of Article 8 ECHR. Further, the more cautious approach vis-à-vis Volodina v. Russia (2) might equally suggest that the Court is still willing to go further in narrowing the margin for States as to what an effective legal framework and criminal investigation entails when cyberviolence is accompanied by physical, offline violence.
Not only was the Court cautious with detailing the positive obligations to tackle TFGBV under Article 8 ECHR, but it was equally unwilling to delve into the gendered aspect of the case. From an abstract perspective, the ECtHR referred to its previous case law to highlight that online violence is a form of gender-based violence (para 118). However, when assessing the lack of effective investigation, the Court does not point out the blatant gendered stereotyping, victim-blaming and gendered angle of the facts at hand. It limits itself to referring to the Romanian District Court’s judgment that highlights the partiality of the prosecution and disdain for the applicant (para 147). At no point, the Court spells out that this lack of impartiality or disdain was due to the gender of the victim.
Moreover, the Court refused to examine the complaint of the applicant under Article 14 in conjunction with Article 8 ECHR. The applicant claimed that the authorities’ failure to conduct a proper investigation was discriminatory. Several aspects of the case supported this argument, including the intrinsic gender-based component of image-based sexual abuse and other forms of technology-facilitated violence, the minimisation of the impact of the facts on the victim, and portraying of the perpetrator’s actions as youthful sexual experimentation, the recurrent reference by the authorities to the applicant’s sexuality, and revictimisation, as acknowledged by the ECTHR (para 147). Still, the Court held that the complaint was closely connected to the applicant’s complaints under Article 8 of the Convention and therefore, needed no further examination.
This case could have been an opportunity for the ECtHR to extend its case law on gendered discrimination in physical domestic violence to TFGBV. In the case Opuz v. Turkey, the ECtHR found a violation of Article 14 in conjunction with Articles 2 and 3 ECHR because of a failure to effectively implement the Turkish legislation on domestic violence, the dissuasion of victims by police officers, and unreasonable delays in issuing injunctions. On that basis, the ECtHR concluded that ‘domestic violence is tolerated by the authorities’ and that the provided remedies did not work (para 197). Further, the Court held that where offences are intrinsically gendered in nature and thus – as the ECtHR held in Thkelidze v. Romania – prejudice-motivated crimes, such as domestic violence, authorities are to treat these crimes the same as other crimes. A similar context as Opuz v. Turkey was present in the M. Ș. D. v. Romania case, namely the national authorities’ finding that the criminal code did not apply to TFGBV, the reluctance of law enforcement to investigate the case, and the unreasonable delays in the investigation and prosecution. Moreover, the Court noted gendered stereotyping by law enforcement including prejudices as to the attitude and sexual life of the victim. Yet, the Court stopped short from examining the gender-based angle of this case. The ECtHR’s tendency to regularly dismiss the need to examine the discriminatory angle in cases regarding gender-based violence was recently criticised by Margarita S. Ilieva. She argued that the ECtHR disrespected the survivor’s autonomy and integrity and departed from universal fair hearing standards, among which the judicial duty to provide reasoned answers to all a party’s main arguments.
In the case M.Ș.D. v. Romania, the ECtHR further consolidates its case law finding that the Contracting Parties are obliged under Article 8 ECHR to ensure a legal framework and effective investigation capable of responding to incidents of cyberviolence. The Contracting Parties are to provide legal remedies for victims, which should consist of criminal remedies for the most harmful forms of cyberviolence, such as NCII or cybersurveillance. The Court was, however, unwilling to move beyond the status quo in further detailing the criteria for an effective legal framework and effective investigation largely relying upon the findings of the Romanian District Court as to the failings of the national system. The lack of focus on the gendered aspect of cyberviolence is particularly problematic given the acceptance of this angle as intrinsic to technology-facilitated violence.
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