Is it all part of the game? Victim differentiation and the normative protection of victims of online antagonism under the European Convention on Human Rights
| Date | 01 May 2016 |
| Author | Therese Enarsson,Markus Naarttijärvi |
| Published date | 01 May 2016 |
| DOI | 10.1177/0269758016628947 |
| Subject Matter | Articles |
Article
Is it all part of the game?
Victim differentiation and
the normative protection of
victims of online antagonism
under the European
Convention on
Human Rights
Therese Enarsson
Umea
˚University, Sweden
Markus Naarttija
¨rvi
Umea
˚University, Sweden
Abstract
This article analyses the issue of online antagonism (defined as antagonistic harassment, defama-
tion, insults and threats online) and the positive obligations of states to counter such antagonism
under the European Convention on Human Rights, from a legal and victimological perspective. The
article illustrates how the necessary balancing between positive obligations to protect privacy
under article 8, and the protection of freedom of speech under article 10, will result in different
levels of protection depending on the victim and the type of victimisation in question. This may
affect the possibilities for individual victims to gain legal redress, specifically access to the criminal
justice system. By comparisons to the current Swedish legislative context, the article highlights
some avenues for legislatures to enhance protection for certain groups without interfering with
article 10. It also concludes that a failure to protect victims of online antagonism through criminal
law may ipso facto weaken the foundations of public discourse that article 10 is supposed to
protect, which should be taken into account in a balancing of the rights in question.
Keywords
Privacy, freedom of speech, crime victims, online antagonism, hate speech, online harassment,
European Convention on Human Rights, positive obligations
Corresponding author:
Therese Enarsson, Department of Law, Umea
˚University, Umea
˚90187, Sweden.
Email: therese.enarsson@jus.umu.se
International Review of Victimology
2016, Vol. 22(2) 123–138
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/0269758016628947
irv.sagepub.com
Introduction
With the rise of social media, the issue of threats, bullying and other violations and hateful
behaviour online (hereinafter online antagonism
1
) has increasingly entered the public debate. In
certain countries, such as Sweden, the issue has become a topic of intense discussion in the legal
community as well, with calls for increased legal protection for victims of such abuse. In others,
like England and Wales, certain aspects of online antagonism, such as revenge porn – the publi-
cation of intimate photos or videos online, usually to antagonise a previous partner – has been the
target of legislative action.
2
As will be shown in this article, online antagonism may constitute a serious violation of a
person’s dignity, sense of security and freedom, as well as a violation of the private sphere. Hence,
the positive obligations of the state under the European Convention on Human Rights (ECHR) may
be activated. These obligations, as interpreted by the European Court of Human Rights (ECtHR),
can be described as a normative lower limit to the protection that states under the ECHR need to
maintain for protected rights – including in certain circumstances the protection of private and
family life under article 8 of the Convention against online antagonism. In this sense, the Con-
vention can be an important resource for victims in states where the legislative framework is
lacking. Meanwhile, these positive obligations may in many instances need to be balanced against
other rights and interests, such as freedom of expression in article 10 of the ECHR. Within the
framework of article 10, the concerns are often materially different, where any measures that
interfere with the right must be weighed against the potential chilling effects on freedom of
expression as such and the associated democratic values. This balancing may in many instances
counteract the protection under article 8, especially in relation to certain victims of online antag-
onism where the need to preserve the possibility of ‘public debate’ may warrant a need to accept
provocative or even insulting expressions targeting an individual.
In the following article we aim to clarify to what extent victims can expect states to provide
legal remedies when faced with online antagonism. This is done through an analysis of the
protection of freedom of expression under the ECHR in relation to the scope of positive obligations
under article 8. Following this, the differentiation of victims and victimisation deemed worthy of
special protection under the Convention is analysed and discussed from a victimological perspec-
tive. We argue that positive obligations serve to provide an important normative right to redress for
certain victims. Simultaneously, however, several factors contribute to the effect that protection
against victimisation through online antagonism under the Convention is reduced in relation to
certain other victims, such as public officials. Even though this to a large extent depends on the
value the Court places on public debate, we argue that a lack of protection in this area could, in
itself, inhibit public debate as well as the autonomy of individuals online – highlighting the need
for a new balancing of these interests. To provide a contextual backdrop we will use the on-going
debate in Sweden as an example and contrast to Convention law. Sweden is interesting in this
context for several reasons. As will be discussed further below, the issue of online antagonism has
been the topic of intense public and legal debate in Sweden for more than two years now. This
public debate has also led to the initiation of legislative action to counter these types of crimes.
Also, while Sweden in many ways can be seen as illustrative of the debate in many European
countries, certain aspects of the Swedish legal system frame the debate in a different way, espe-
cially with regards to defamation – which enables interesting comparisons to be made. Finally,
historically the Swedish constitution has placed a significant emphasis on freedom of expression
(Sterzel, 2015), but new technological developments have challenged this emphasis and forced the
124 International Review of Victimology 22(2)
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