Non-consensual creation, processing, and distribution of intimate images in the Western Balkans
Legislative and institutional framework
Most of the countries covered in the study have still not directly regulated the non-consensual creation, processing and distribution of images and videos, sometimes colloquially referred to as revenge pornography,1 in their Criminal Codes, except Croatia and Slovenia (both members of the EU) and Montenegro as of the end of 2023. However, each country has a set of criminal offences that can be evoked in these cases. These offences broadly fall under two categories: 1) protection of body and sexual integrity (e.g. sexual harassment, harassment, stalking) and 2) protection against privacy intrusions through technological means (e.g. unauthorised recording/filming, disclosure of personal data). Despite limitations, these offences can provide protections from a normative perspective, though it is difficult to assess if existing offences offer meaningful protection in practice.
Most recently, Montenegro criminalised the unauthorised taking of photographs as well as the unauthorised publication and presentation of other people’s writings, portraits, and recordings through two articles in the Criminal Code. This change presents a significant step forward in the ways in which sexually explicit non-consensual content is regarded and addressed. The criminal acts carry with them a potential prison sentence of between six months and two years. In Serbia the criminal acts of sexual harassment and unauthorised recording are prosecuted based on private criminal charges, meaning that there is no assistance from the police/prosecutor (the affected party is responsible for proving the crime occurred) and more importantly the charges need to be filed in the period of up to 3 months after the person finds out about the content. In all countries, except Serbia, these cases are prosecuted by the General Prosecution office, and there are dedicated police units for countering cybercrime. It is unclear if these units also investigate cases of distribution of non-consensual intimate materials or, more importantly, offer assistance in enforcement procedures (e.g. requests for removal of the content). In some countries, like Serbia and Albania, there are special police units dedicated to counter domestic violence that have a certain level of expertise in dealing with gender-based violence (GBV) cases.
The enforcement of judgments is tied to severe problems as the digital platforms are reluctant to cooperate with the state authorities. CERT (Computer Emergency Response Teams) and similar bodies are often involved in these procedures (e.g. request to block/remove content from digital platforms) with different levels of success and expertise. In general, there is little to no intervention and assistance from the human rights oversight bodies like the Gender Equality Commissions or Ombudspersons who are still not particularly vested in this societal issue.
Main challenges in the region
- Most countries lack institutional competence in official bodies such as police and judiciary for dealing with gender-based online violence (GBOV) cases, which often leads to lack of sensitivity or sense of urgency when such cases are reported.
- Even in cases where the law tries to catch up with the technology and non-consensual processing and distribution of intimate images could be punished, the creation of such materials is still not recognized as a crime, allowing the perpetrators to get off and not face punishment (in the case of Telegram groups in Serbia, the administrator of the groups was the only one persecuted and ultimately released).
- Insufficient knowledge on issues of gender-based online violence is prevalent and therefore these issues are not problematised adequately, affecting all aspects of society, from public authority figures and education institutions to the broader public.
- When these kinds of cases are reported on in the media, they are mostly reported on in a sensationalist way and can often retraumatise survivors through unethical reproduction of the content, especially if the case involves celebrities or other public figures.
- In most countries, educational institutions do not discuss issues such as sexual harassment or gender-based violence, neither in the offline or online context, leaving students without any adequate knowledge on the topic.
- The nomenclature surrounding these crimes is also problematic, associating the crimes both with revenge (in some instances such cases do not necessarily feature an element of revenge, and this kind of wording might suggest the survivors have done something that warrants retaliation) and pornography (the majority of people with an experience of image based sexual harassment or violence did not consent to the material being made and/or distributed), thus contributing to further stigmatization.
- The issue of gender-based online violence is often seen as an endemic one, rather than a greater societal issue stemming from cultural approaches to violence against women, sexual harassment, and gender inequality.
- Civil society organisations and women’s rights organisations working on these topics are usually underfunded and therefore rely on short-term projects and grants to offer their support to survivors and are seldom invited to contribute in official discussions.
- The stigmatisation of survivors leads to the underreporting of such crimes, which makes it more difficult to understand the widespread nature of such crimes as well as to come up with effective ways to curb them.
What can be done?
In Slovenia and Croatia the Criminal Code recognises the distribution of intimate materials without consent, and moreover, the Croatian Criminal Code addresses more specifically deepfakes and other forms of image-based sexual abuse. A widespread distribution of non-consensual content also carries a higher penalty in these countries. In some countries (North Macedonia) policy changes are taking place that should ensure compatibility of the Criminal Codes with the Istanbul Convention, while in others specific amendments to the Criminal Code are being proposed to deal with such crimes directly (Montenegro). This is an important moment to open up discussion with the legislative bodies about issues of non-consensual image based abuse and ensure that it is taken into consideration when drafting future laws. Although it might not always be necessary to include a direct provision, as in the case of Slovenia or Croatia, it is important to ensure that non-consensual image based sexual abuse is broadly covered and included in state legislature or that certain problematic legal requirements are amended (e.g. in the cases of Montenegro and Serbia – private criminal charges and extremely short three months preclusive period). Additionally, civil society organisations, including those offering shelters, legal support, and awareness campaigns, play a vital role in providing comprehensive support and raising awareness about these critical issues.
Regardless of the policy changes, it is of utmost importance to undertake in-depth case law research to understand the previous court rulings and legal reasoning in digital GBV cases before proposing any legislative changes. This research could in fact show that Criminal Codes and case law are sufficiently equipped to offer protection, in which case the advocacy efforts should focus on strategic litigation, raising awareness, and sensitisation of judicial authorities and law enforcement.
Concerning good practices, it can be said that, for example Albania has a geographically balanced spread of women-led groups and resources, while some of the women-led initiatives in Bosnia and Herzegovina, e.g. the women of Kruščice, have shown that community activism can lead to significant changes – which can motivate communities to work on such issues too. In Greece there were certain cases (e.g. S. Panagiotopoulos case) that raised social awareness on non-consensual image based sexual abuse and represented a stepping stone for survivors to seek justice (as recently happened in a case in Thessaloniki). The penalties accompanying these cases are too lenient to serve as adequate deterrence, but serve as a yardstick for similar cases. Similar to Serbia, survivors in Greece are encouraged to reach out to CSO support structures, before engagement with police, so that trained lawyers can provide trauma support early, and throughout the process.
In Montenegro, the Women’s Rights Centre organises trainings for public servants who work on cases of non-consensual sexual materials creation and distribution and there is news of upcoming legislative changes that would allow state-wide filtering and blocking of online content, including the distribution of non-consensual image based sexual abuse materials. NGOs in North Macedonia are working under the Platform for Gender Equality lobby to change not just the legal framework, but also the public narratives (e.g. victim blaming) in non-consensual image based sexual abuse cases through public protest and demonstrations,2 as well as provide survivors with free legal aid and psychological support.
In March 2022, two people were convicted on charges of production and distribution of child pornography in North Macedonia. Kosovo’s 2010 Law against domestic violence is currently going through a process of amendment, and the new focus will be set on countering violence against women online. This could create momentum to more effectively counter GBV in the country. Serbia’s Strategy for Prevention and Combating Gender-Based Violence Against Women and Domestic Violence (2021-2025) recognises ‘revenge porn’ as a form of GBV requiring more attention and awareness-raising. Existing experience, and decades of learning and developing alternative systems to counter GBV and support women have the potential to bring change, raise awareness, and offer immediate help to survivors.
Joint efforts on educating the public and relevant stakeholders in the region on these issues is also a necessary advocacy step. Demystifying concepts which surround GBOV and adequately approaching them can open avenues for understanding and collaboration between civil society and other groups such as governments, the media, and the private sector. Arguing for improved knowledge on this topic will be beneficial for shaping future generations and underlining the importance of strong and appropriate regulatory mechanisms and frameworks.
1 This term can be misleading and insulting, as it both refers to revenge as to imply there is something to take vengeance for, and paints the materials as pornography, which is not the case in the majority of instances. A more appropriate way to refer to it is as non-consensual image based sexual abuse.
2 In February 2021 hundreds of protesters gathered outside North Macedonia’s Interior Ministry called on the government to crack down on private messaging groups sharing unauthorised and often explicit photographs and videos of women and girls such as the Telegram group Public room with more than 7,000 members shared thousands of private photos and videos of women and girls, including their private data such as addresses, phone numbers, ID, etc. (doxxing).
Mila Bajić is the Lead Researcher at SHARE Foundation with a focus on the relationship between new media, technology and privacy.
Non-consensual creation, processing, and distribution of intimate images in the Western Balkans is partly supported by the Open Society Foundation Western Balkans.
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