Combatting Online Violence Against Women Journalists

The focus of this module:

• The prevalence and severe impacts of online violence against women journalists in SSA calls for concerted and wide-ranging efforts to protect them online and seek accountability for such harms.

• Litigation can be a particularly impactful way of doing so, but comes with particular requirements that warrant careful consideration, such as jurisdiction, standing, and admissibility.

• Alternatively, or in concert with litigation, supporters can consider law reform strategies as well as advocacy campaigns that can build public or targeted support for a particular issue or case.

• Finally, it is vital that journalists take practical steps to protect themselves online and to deal with online violence when it occurs to mitigate against the silencing effect of these attacks.

Introduction

The media, the government, the state, and civil society organisations are struggling to respond effectively to online violence against women journalists. This highlights the urgent need for policy reform and innovative legal, legislative and normative responses, in order to ensure compliance with international human rights law.(1)

Effectively countering online violence against journalists, particularly women journalists,(2) in sub-Saharan Africa (SSA) is a pressing global issue that demands:

• Localised;

• Contextualised;

• Intersectional; and

• Practical strategies.

This module focuses on the practicalities of litigation to protect and defend the rights of women journalists online, providing guidance from the initial phases of consideration of litigation through to the legal requirements. In addition to litigation, this module considers complementary strategies such as advocacy, which can support litigation by building public awareness and support, as well as digital security tacticsand tools for victims and survivors of online violence to protect themselves in the digital sphere.(3)

It is complemented by Module 6 in Media Defence’s Advanced Modules on Digital Rights and Freedom of Expression in sub-Saharan Africa which details how to litigate within several of the key human rights fora on the continent.

Litigation Strategies

• Strategic litigation: Strategic litigation, sometimes also referred to as impact litigation, is a method of seeking broad social change, beyond a remedy for an individual, by carefully selecting and bringing a case to court.⁴ It has been used extensively around the world, including in SSA, to set progressive jurisprudence and achieve accountability for human rights abuses.

• Challenges and opportunities: While it can be risky — with the potential for a negative judgment or unforeseen externalities — and tends to require significant investments of time and resources, it can be a highly effective way of stimulating law reform, influencing public opinion, and having a real impact on the lives of people affected by rights violations.

• Key considerations: In assessing whether to launch litigation in a case of online violence, one should consider:
  • The outcomes sought;
  • Whether litigation can reasonably achieve these outcomes;
  • Whether the victims, survivors or affected communities will be best served by litigation;
  • What various potential paths the litigation could take; and
  • How the outcomes of litigation could be leveraged for positive social change.

Strategic litigation in the context of digital rights and online harms poses unique challenges and opportunities that should also be considered when developing litigation strategies.⁵

Forums

The selection of a suitable forum with jurisdiction is critical to the eventual success of litigation. Lawyers should consider what is effective and available at the national, regional, and international levels. Typically, regional and international fora are only available where national remedies have been exhausted or where non-binding decisions are being sought, although there are some exceptions.

There are a range of such fora to be considered, including:⁶

• The United Nations Human Rights Council (UNHRC);

• The African Court on Human and Peoples’ Rights (African Court);

• The African Commission on Human and People’s Rights (ACHPR);

• The Economic Community of West African States Community Court of Justice (ECOWAS Court); and

• The East African Court of Justice (EACJ).

Each of these has its own requirements for founding jurisdiction, which must be carefully considered before launching an application or a complaint.

Jurisdiction

Jurisdiction refers to the ability or competency of a court or forum to consider and decide a particular matter.

When determining whether a court has jurisdiction, it is important to look at several sub‑components:⁸

• Jurisdiction ratione personae: whether the court has jurisdiction over the person of both the complainant and the respondent.

• Jurisdiction ratione materiae: whether the subject matter falls within the scope and mandate of the forum concerned.

• Jurisdiction ratione temporis: whether the violations occurred within a time frame that allows the forum to exercise jurisdiction. Temporal jurisdiction usually refers to whether:
  – the violation occurred after the relevant treaty establishing or granting the court authority had come into force for a particular country, and
  – the victim brought the claim before the forum within a reasonable period after the violation occurred.

For more information on jurisdiction, admissibility and proceedings at regional fora in Africa, please see Module 6 on Litigating Digital Rights in Africa.

Standing

Standing refers to the ability of a party to bring a matter before the court. It involves a potential litigant demonstrating a sufficient connection between the issue and their interest in the issue. Different courts and fora may have different standing requirements, this should be considered and determined early on in strategic litigation.

• In domestic courts, standing is determined by national law and the subject matter of the suit.

• In regional and international courts, standing is determined by the rules of procedure of the forum.

The table below lists some examples of the standing requirements of different fora:

Considerations on standing: When considering whether a party has standing, it is important to consider and assess:

• Whether an individual, community or civil society organisation is best placed to bring the matter to the court or forum?

• Would a combination of different applicants be strategic?

• What are the different interests in the matter?

• What are the different risks of instituting a matter on behalf of certain parties?

• What is in the best interest of the case and the affected parties?

• What are the resources or capacity constraints?¹⁰

Representation and Expertise

Different courts have their own rules on representation, and in some cases, legal representation may not be mandatory. It should be kept in mind that there are a range of organisations working to provide technical and legal support to legal efforts to protect journalists’ safety and freedom of expression, which can be drawn on if needed, particularly by providing access to experienced senior digital rights lawyers. These include, for example:

• Media Defence;

• The International Women’s Media Foundation;

• The International Press Institute;

• The Legal Network for Journalists at Risk;

• The Vance Center for International Justice;

• The Pan African Lawyers Union;

• The Thomson Reuters Foundation TrustLaw programme; and

• The International Senior Lawyers Project.

Admissibility

• Admissibility: This refers to the process applied by international human rights fora to ensure that only cases that need international adjudication are brought before them.

• Requirements: Usually, it is required that all local remedies have been exhausted, that consideration be given to whether there are rules relating to prescription, and whether the forum recognises the concept of ongoing harm.

• Exceptions: There are exceptions to the local remedies requirement, such as if local remedies are non-existent, unreasonably prolonged or inaccessible, etc.¹¹ Notably, the ECOWAS Court and the EACJ do not require local remedies to have been exhausted before bringing a matter,¹² although the ECOWAS Court does require that the matter has not been determined on the merits by domestic courts.¹³

Identifying the parties

It is important to consciously reflect on and identify the most appropriate respondent in a matter, especially in cases involving anonymous or pseudonymous users or multi-national technology companies based in foreign jurisdictions. To assist in this, a litigant may seek an order from the court for an intermediary to disclose the identity of the user or to provide clarity on business structures. Law enforcement officers may also send a legal request to an intermediary requesting them to disclose the identity of the user.

Amici curiae

Amicus curiae are friends of the court who, while not a main party to the litigation, instead offer advice to the court to assist in the determination of the matter. An amicus may petition the court to be granted leave to serve as an amicus or may be invited by the court to offer expertise. Thus, serving as an amicus can be an influential way to support strategic and impact litigation and to provide relevant guidance to the court, particularly on international human rights standards and comparative law, as well as by providing technical expertise on digital or technological questions.

Each court or forum will usually have its own rules regarding the admission of amici, but often this involves proving that one’s submission will be unique and additive to the litigation.

Administrative considerations

Litigation is costly, with implications for both the victim/affected party, relevant third parties, and lawyers themselves. It is important to ensure that any litigation that is pursued is adequately funded. This includes funding for all future potential stages of appeal and review.

Litigants should also, at an early stage, consider the most effective timing for launching litigation or important milestones in the case and evaluate the staff and capacity needs — both in terms of legal support and otherwise — to ensure the case can be managed effectively to its end.

Choice of remedy

Another key element for consideration, particularly in terms of evaluating the substantive goals of litigation, is the choice of remedy. Depending on a country’s legal framework, online violence can be both a criminal and civil offence, which would influence the practicalities of litigation.

Several factors influence the appropriate relief to be pursued for an online violence case, including:

• Standard of proof: the standard of proof in criminal cases is beyond reasonable doubt, much higher than that in civil law, in which it is a balance of probabilities.

• Responsibility of the prosecution: Depending on national law, the responsibility to prosecute is usually placed on the state, state agency or independent institution created by national law. This means that criminal prosecution may be out of reach for would-be litigants. However, one can consider whether the country provides mechanisms for private prosecution or can act for a client either by watching brief or advancing a defence in the case of an accused person.

• Defences offered by the respondent/defendant: The available defences to the respondent or defendant will have an important impact on the prospects of success of the litigation. One should, therefore, consider the context and facts of a case to determine which defences might impact the relief being sought.

Gathering evidence

A central challenge facing proponents of safer digital spaces is the collection of admissible evidence. In sub-Saharan Africa, the ICT Policy Centre for Eastern and Southern Africa (CIPESA) reports that the quantification of instances of online GBV remains a challenge “due to several inhibitions, including the culture of silence.”¹⁸

Key considerations around evidence gathering include:²⁰

• Balancing exercise: Lawyers must balance victims’ rights to digital anonymity with the anonymity of perpetrators while ensuring that evidence is admissible and collected legally.

• Domestic laws: Gathering evidence is crucial for litigating online violence, necessitating an understanding of domestic laws on electronic evidence to tender relevant and admissible evidence to the court.

• Experts: Obtaining specialist technical assistance may be necessary to gather and interpret digital information effectively.

• Requirements: Legal and technical requirements must be considered by litigants and courts when assessing the admissibility of evidence, including the digital forensics procedures and tools used, the digital laboratories where analyses occur, and the qualifications of digital forensics analysts and expert witnesses.

Safety and security considerations

Potential litigants also need to consider the virtual and physical risks associated with litigating issues of online GBV, including the risk of attracting negative attention from perpetrators and their supporters. Based on this, the protection of victims/survivors of online GBV, their family members, witnesses, and any other relevant third parties, such as colleagues, should be carefully dispensed with before a matter is instituted.²³

This may require lawyers to deploy solutions to address safety and security concerns, deal with issues around anonymity and confidentiality, and take steps to prevent the potential re-traumatisation of the victim/survivor and other third parties.

Advocacy Strategies

Developing advocacy strategies

The potential impact of litigation can often be augmented and supported by accompanying advocacy campaigns that seek to bolster public support and awareness around the relevant issues. This may be particularly true in matters of online violence which involve technical elements and with which stakeholders, including magistrates or judges, may be unfamiliar.

Keep in mind that advocacy campaigns typically require a different skillset from litigation and require building a compelling narrative or story that will resonate with large numbers of people.

Further, lawyers can refer to, and tailor, the guidance provided by the UN Women regarding the development of an advocacy strategy to tackle violence against women.²⁵ This strategy can be tailored with support from country-based individuals and groups to ensure that intersectionality guides the strategy development.

Literacy for the courts and media

Numerous commentators note that online GBV is still a relatively nascent area of consideration in the SSA region. There is a need for efforts to engage judicial officers, as well as the media, to sensitise them on the impact of digital security attacks on journalists’ human rights, media freedom, and democratic values.

Legislative/policy reform

In addition to instituting litigation, efforts to seek legislative and policy reform can be simultaneously pursued as a measure to ensure that legal provisions are put in place to provide meaningful protection to women journalists online.²⁸

The Organisation for Security and Co-operation in Europe (OSCE) provides guidance on how to ensure that legislative frameworks, most notably pre-existing harassment laws, can appropriately respond to the new challenges of online violence against women journalists. It recommends that these laws should be amended to explicitly apply to online harassment, so as not to create room for doubt as to the extension of their application, and that they should:

• Include indirect communication, such as the creation of fake social media accounts or photoshopped images of victims shared with third parties;

• Target online harassment that is sexual and/or sexist;

• Include language that addresses harassment campaigns perpetrated by multiple individuals; and

• Adopt tiered responses to punish online harassment of varying levels.²⁹

Digital Security

Personal protective techniques³¹

While no journalist should be responsible for preventing online violence or harassment against them, taking steps to manage one’s digital profiles and making it more difficult for perpetrators to act against them can be an effective way to protect against such harms before they occur

• Be conscious and cautious regarding the information you share with others
  • Be careful not to give out your phone number, personal email address, identity numbers or location in both online and offline fora which could spread beyond your control and reach unintended audiences.
  • Be careful about not tagging your location in social media posts, at least until you have left it, and closely monitoring followers on personal accounts on which you may share more personal information.
  • Speaking to friends and family about not sharing images, videos, or other content online that provides sensitive information such as your location or your children’s school.

• Consider the legal terms and conditions of the content you share: Some social media and online platforms have conditions that enable the free use of any content posted online, enabling would-be attackers to reproduce or modify photos or other content you have shared online. Check the terms and conditions of the platforms you use and whether the settings on your account can be changed to prevent this kind of usage.

• Secure all your accounts: Online violence can sometimes take place through hacking or unauthorised access to your own accounts:
  • Protecting against these risks requires you to always use secure passwords which are regularly changed and saved in a secure password manager, use two-factor authentication (2FA) whenever possible, and be careful about sharing passwords with others.
  • Journalists should also educate themselves on phishing and malware to be able to identify such attempts and be careful to keep all software up to date, including browsers. Consider exploring encrypted email and document-sharing services as well as using encrypted messaging platforms.
  • One can also consider using Virtual Private Networks (VPNs) to mask your physical location and encrypt your connection to the internet, particularly when using public WiFi networks or networks shared with other people.

Dealing with online violence

• It is important to emphasise the need to document the messages and communications you are receiving, both to share with others as well as in case of potential future legal action.

• Consider reporting the abuse to your employer, family, friends, and others who can provide support. Although this might be hard, it can be helpful to have others to lean on as well as to get advice from colleagues or others who may have experienced something similar.

• Consider blocking the perpetrator, logging off temporarily, or even closing your account in order to protect yourself from further violence.

• Do not hesitate to seek psycho-social support however it may be available. It is important to emphasise that although perpetrated online, such violence has very real and damaging real-world effects for its victims/survivors, and it is normal to experience these effects. Check whether your employer provides access to psycho-social support and consider reaching out to a professional who can assist.

Reporting to online platforms

Another critical step in managing online violence which deserves further attention is reporting to the online platforms on which the content is shared. All platforms have standard terms of use, and if you can show that someone has violated those terms, you can have the content removed and/or the person’s account suspended or deleted, which prevents additional harm in future.

For further guidance, as well as a list of other digital security resources, see the Practical Guide for Women Journalists on How to Respond to Online Harassment published by UNESCO, TrustLaw, the Thomson Reuters Foundation and the International Women’s Media Foundation.

Conclusion

Digital attacks on journalists can occur in a wide range of formats, all with extensive impacts on a wide range of human rights that are protected and promoted by international human rights law. This module provides lawyers with a practical but introductory guide to considering strategies to counter and seek accountability for online violence against journalists, including through litigation, advocacy, and pre-emptive digital security tactics. Litigation can be a highly impactful way of security progressive jurisprudence and real remedies but is also most likely to be effective and successful when coupled with non-legal strategies such as public advocacy campaigns and efforts to improve the responsiveness of online platforms to such violence.