Addressing the Surge of Online Violence Against Women

Question 1

Online violence against women has been increasing. The UN Women, which is dedicated to gender equality and women empowerment, has observed that during this COVID-19 pandemic, this form of violence has increased (UN Women, 2020). UNESCO, through its research, found that 73% of women have experienced online violence (UNESCO, 2015). Such violence causes severe social and economic implications for the online status of women, such as rape or death threats (UNESCO, 2015). In EU-28, 18% of women have experienced serious internet violence at ages starting from 15. This is 9 million women. Despite this grave situation, it has been observed that law enforcement agencies and the courts in many countries are not able to take appropriate actions (UNESCO, 2015). The urgency to enforce lawful actions against the perpetrators is important as the online violence against women has taken a social issue. This essay proposes that it is the law alone that could tackle online violence against women.

The OHCHR states that an actionable online gender-based violence or the threat of violence can be assessed by determining whether or not there is an intent to harm, credibility, content, or an imminent harm (OHCHR, 2016). The 1993 UN Declaration on the Elimination of Violence against Women also recognises this form of violence stating that it could lead to physical, sexual, psychological or economic harm or suffering. Such act could be in public or in private life comprising acts and coercion and depriving liberty. Thus, the UN observes that even if states do not have the duty to protect individuals from offense, its duty is to protect individuals from the harm. The main issue will be how to hold the perpetrators responsible (OHCHR, 2016).

Given the increasing seriousness of this issue, there is no doubt in saying that this issue needs an immediate intervention of law. Every social issue has been solved through a direct and strong lawful action. For example, inequality and discrimination are prohibited by the Equality Act 2010; forced marriage is an offence under the Anti-social Behaviour, Crime and Policing Act 2014; or the domestic abuse and violence is dealt with by the Domestic Abuse Act 2021. The issue of online violence against women issue has also become a social issue, where the internet and new tech devices have been used for many inappropriate activities. For example, sending sexually explicit material through such devices and online platform; distributing rape jokes, memes and rape-supportive texts, etc are all online facilitated sexual violence. Their existence is a representation of the condoning, normalisation and minimisation of sexual violence against women in the society (Powell & Henry, 2017). The UK has the Protection from Harassment Act 1997; the Crime and Disorder Act 1998; the Domestic Violence, Crime and Victims Act 2004; and the Protection of Freedoms Act 2012 that deal with online crime. They concern crime that involves stalking by putting a person in fear of violence or distress and harassment (S4 and S2), harassment, domestic violence, and any kind of repeated and unwanted behaviour causing a person distress (Crown Prosecution Services, 2018). These legislation make online violence a criminal offence.

Despite the existence of the legislation, the UK has reported a widespread online violence of women with one in five suffered abuse or harassment. Amnesty International reported this finding and reported that women suffering offline consequences because of online violence, such as psychological consequences. They complaint the response online violence or harassment is inadequate. This means they are not happy with actions or inactions of the online platforms that do not address the issues (Amnesty International UK , 2019). This demonstrates two things. The first is the lack or failure of regulatory measures to tackle the issue. The second is the social indifferences towards this problem. In this light, whether it is justified to say that the law itself cannot be the lone means to solve the problem, and that society at large must also be sensible.

Abuses are of multiple types. Women experienced them as a routine part of their online lives. Abuses form a course of behaviour, and not a set of individual acts. Indeed. Police treat report by women abuse as an individual communication and a discrete act. These lacks gauging the harm caused by the accumulated acts of abuse (Lewis, Rowe, & Wiper, 2017). In a way, the response and the formulation of online violence presents a broader concern, which comprises failure of the criminal justice systems to see the cumulative impact of individual distresses arising from both high and low level of offending (Burney, 2009; Chakraborti, Garland, & J, 2009). In this light, it could also be debated that private preventive management could deter online violence. For example, the engineering and technology community or companies that are tech-driven can use modern technology to address this social problem. For example, they can formulate artificial intelligence and learning algorithms to detect activities and content that forms online violence. It can detect them and identify them as a category of online violence, such misogyny, sexism, and peer violence among other things and automatically report such cases (Rodríguez, Díaz-Ramírez, Miranda-Vega, Trujillo, & Mejía-Alvarez, 2021). This step is necessary and plausible given that online violence leaves a permanent and visible trail longevity (Lewis, Rowe, & Wiper, 2017).

The consideration of the law and the private formulation of solution to online violence gives the view that there is a lack of enforcement against online violence; lack of regulatory guidelines for internet service providers to ensure protection compliance; and a decrease in social values with respect to the dignity of women. However, the only means of enforcing actions against online violence against women is through the law. As such, criminologists demand particular attention to the questions of victimisation and regulation. Law must equate online violence to offline abuse as the content of the abuses are similarities (Lewis, Rowe, & Wiper, 2017). The issue of online violence against women is a human rights issue. It has severe consequences as much as that related to abuse experienced offline. Amnesty International recognises the worrying psychological consequences of such online abuse. It states that it affects the rights of women to their safety; restraints them from exercising their freedom of expression; and disrupts their participation in public life (Amnesty International UK , 2019).

These results also show that women do not feel supported enough by social media companies, government or the police. All these institutions must do more to prevent, and respond to, all acts of violence and abuse against women online. They must also ensure that women are able to use social media platforms freely and without fear.

To conclude, the lack of stricter regulatory framework laying out guidelines for concerned institutions (private or public) to regulate the use of online platforms and the lack of clearer definition and recognition of online violence have led to even more importance of measures of law to urgency intervene in the matter in hand. Leaving it to the private or public institutions rather than regulatory agencies cannot address the widespread violence against women.

Prompt application

The work of Lewis, Rowe, and Wiper (2017) serve importance to this analysis. They have adopted a wider approach than the limited view of online abuse against women. For example, they analysed standard grouping of aggressive communications and distinctive classification such as specific features of misogynistic communication. They cited works of various authors on criminology, such as O’Sullivan and Flanagin (2003) and Vrooman (2002) who led to further reading on a wider and diverse interpretation of online communications that have violent or abusive content. Their work is published in the British Journal of Criminology, which means there is a certain high level of reliability of the work and the cited works.

The work of Lewis, Rowe, and Wiper (2017) is substantially relevant to the question in hand. Their work helped understand the notion of online violence against women and the extent of implication. Their broader range of analysis helped formulate the specific structure intended given the question in hand.

Their work is objective. They presented the gaps in the current framework of understanding online violence against women to recognise and give priority to the experience of those who have experienced it. They do not conceptualise online abuse as distinct from real-world contexts. This means that the method they have used to study the problem was victim-oriented. For example, they presented real life value experience and narratives of women who have experienced online abuse. They adopted a survey and in-depth interviews to be objective as well as flexible enough to give the participants enough space and time to give their narratives that are personal.

Lewis, Rowe, and Wiper (2017) is structured within the research objectives. Information are laid out in a continuous relevance to the topic in hand. They provided perspective of online violence, problem in interpretation and conceptualisation, and clear goals and applicable methodology to build and verify theories. They covered materials since 2002. This is logical as the essay suggests that online violence comprise accumulation low-level offending and serious threats of offence indicating a larger period of accumulating experiences.

Bibliography

Amnesty International UK . (2019). Online abuse of women widespread in UK . Retrieved from Amnesty International UK : https://www.amnesty.org.uk/online-abuse-women-widespread

Burney, E. (2009). Making People Behave: Anti-Social Behaviour, Politics and Policy. Routledge.

Chakraborti, N, Garland, J. (2009). Hate Crime: Impact, Causes and Responses. Sage.

Crown Prosecution Services. (2018, May 23). https://www.cps.gov.uk/legal-guidance/stalking-and-harassment. Retrieved from https://www.cps.gov.uk/legal-guidance/stalking-and-harassment

Lewis, R., Rowe, M., & Wiper, C. (2017). Online abuse of feminists as an emerging form of violence against women and girls. British Journal of Criminology, 1462-1481.

Powell, A., & Henry, N. (2017). Sexual Violence in a Digital Age. Palgrave Macmillan UK.

OHCHR. (2016). ELIMINATING ONLINE VIOLENCE AGAINST WOMEN AND ENGENDERING DIGITAL EQUALITY. Retrieved from OHCHR: https://www.ohchr.org/Documents/Issues/Women/WRGS/GenderDigital/DueDiligenceProject.pdf

Rodríguez, D. A., Díaz-Ramírez, A., Miranda-Vega, J. E., Trujillo, L., & Mejía-Alvarez, P. (2021). A Systematic Review of Computer Science Solutions for Addressing Violence Against Women and Children. IEEE Access, 114622-114639

UN Women. (2020). Online and ICT* facilitated violence against women and girls during COVID-19. Retrieved from Un Women: https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2020/brief-online-and-ict-facilitated-violence-against-women-and-girls-during-covid-19-en.pdf?la=en&vs=2519

UNESCO. (2015). UNESCO Combatting Online Violence Against Women & Girls: A Worldwide Wake-up Call Final report of the Broadband Commission Working Group on Gender, September 2015. Retrieved from UNESCO: https://en.unesco.org/sites/default/files/highlightdocumentenglish.pdf

Question 2

The need to show show a ‘prima facie’ in interlocutory injunction application could be explained by referring to Justice Laddie in the case of Series 5 Software Ltd, who opined that if the defendant has the likelihood to win at the trial, it cannot fair to prohibit them pending the trial. Applicants during the greater part of the 18th and the 19th centuries had to meet this test. As such, courts used to assessed and adjudicated on merits regarding the rights underlying an application as they would have at the trial.

The test of prima facie was altered by the House of Lords in the case of American Cyanamid Co. v. Ethicon Ltd. Lord Diplock stated that the decision to grant must be taken when there is a right or a violation of the right or both; the right is and will remain uncertain until the final judgment is given. He termed the test to be a confusion regarding the object sought by an interlocutory injunction arising from the incomplete and untested evidence at the stage of an interlocutory injunction. Instead of showing prima facie, Lord Diplock stated that the applicant must show a serious question to be tried, or a real prospect in succeeding for a permanent injunction at the trial. Only then the court can consider applying the balance of convenience whether to grant or refusing the interlocutory relief.

The thresholds laid down by Lord Diplock was not free from challenges. Challenges from courts, particularly from the Court of Appeal arose as they struggled to apply the guidelines to cases. For example, In Fellowes & Son v. Fisher, Lord Denning expressed difficulty in applying the guidelines by ignoring the need to show prima facie stating that there are other special factors that requires the determination of prima facie.

---

1. Series 5 Software Ltd. v. Clarke (1995), [1996] 1 All E.R. 853 at 857.
2. William Williamson Kerr, A Treatise on the Law and Practice of Injunctions (Blackstone Publishing Company, 1889) 1.
3. American Cyanamid Co. v. Ethicon Ltd. [1974] Fleet Street Reports 312 (C.A.).
4. Ibid, 407.
5. Ibid, 406.
6. Ibid, 408-409.
7. Fellowes & Son v. Fisher (1975), [1976] Q.B. 122, [1975] 2 All E.R. 829 (C.A.).

While considering an application, the courts must consider the public interest. For example, in Themehelp Ltd v West, the Court of Appeal considered an application to prevent the enforcement of a performance bond pending a fraud trial. The court considered carefully the situations in which the order would be grant as it involved the risk of disturbing the mercantile practice of treated performance bonds as autonomous guarantees enforceable notwithstanding problems irrelevant to the guarantee.

Lord Diplock stated that an immediate decision will require an estimate of strength of each party’s case. This means a prima facie case is required. This sense is echoed by Lord Browne highlighting the need for prima facie case to consider the balance of convenience. Sir John Pennycuick expanded the application of no-prima facie rule in the case of Bryanston Finance Ltd. v. de Vries (No. 2), stating that the guidelines under American Cyanamid is applicable to motions seeking interim relief pending the determination of the parties’ rights at the hearing and not to those that seek relief that will finally determine the issue in the action and to those that seek to stop proceedings.

The courts’ challenges to the rule exempting prima facie case show that courts find the assessment of the relative strength of the parties’ cases as the proper factor in deciding the application. They also rely more on the risk harm and the balance of inconvenience. The rule laid by Lord Diplock is alleged as the most dictatorial as his rule tells the judge to ignore the determination of likelihood of a party winning. This is particularly applicable when in a majority of case the judge could reasonable and readily see which party has the likelihood to win.

---

8. Smith v Inner London Education Authority [1978] 1 All ER 411, CA.
9. Themehelp Ltd v West [1995] 4 All ER 215.
10. Ibid.
11. Fellowes & Son v. Fisher (1975), [1976] Q.B. 122, [1975] 2 All E.R. 829 (C.A.)., at 133.
12. Ibid, at 138.
13. Bryanston Finance Ltd. v. de Vries (No. 2) (1975), [1976] Ch. 63, [1976] 1 All E.R. 25 (C.A.).
14. Fellowes & Son v. Fisher (1975), [1976] Q.B. 122, [1975] 2 All E.R. 829 (C.A.), at 81.
15. Jean-Philippe Groleau, ‘Interlocutory Injunctions: Revisiting the Three-Pronged Test’ (2008) 53 McGill LJ 269.
16. Thomas F. Cotter, Comparative Patent Remedies: A Legal and Economic Analysis (Oxford University Press 2013) 177.

This means that the rule that prima facie case is no longer required has exceptions, or more appropriately, is not completely true. The consideration of the risk of harm and balance of inconvenience drive the need for making out the prima facie case. For example, in case of mandatory interlocutory injunctions, the courts exercise more reluctancy to award. There is a higher test than that laid out in American Cyanamid. Thus, in De Falco v Crawley Borough Council, Lord Denning ruled that a MR held a mandatory interlocutory injunction cannot be granted in the absence of a ‘strong prima facie case’. This was echoed in the case of Shepherd Homes Ltd v Sandham, where Megarry J ruled that the case must be “unusually strong and clear”. This calls for a high degree of assurance from the courts at trial. This also means that the irrelevance of prima facie in interlocutory injunctions cannot hold.

To conclude, the analysis here presents that the rule in question is not completely accurate. There are special cases and circumstances that the court must see while dealing with the relevant application and that prima facie case is strong factor relied upon by the court to deliver the goals sought by interlocutory injunctions.

Dig deeper into Addressing Gender Pay Disparities with our selection of articles.

---

17. De Falco v Crawley Borough Council [1980] QB 460, CA.
18. Ibid, at 478.
19. Shepherd Homes Ltd v Sandham, [1971] Ch 340 at 349.

Bibliography

Cases

American Cyanamid Co. v. Ethicon Ltd. [1974] Fleet Street Reports 312 (C.A.) Bryanston Finance Ltd. v. de Vries (No. 2) (1975), [1976] Ch. 63, [1976] 1 All E.R. 25 (C.A.)

De Falco v Crawley Borough Council [1980] QB 460, CA

Fellowes & Son v. Fisher (1975), [1976] Q.B. 122, [1975] 2 All E.R. 829 (C.A.)

Series 5 Software Ltd. v. Clarke (1995), [1996] 1 All E.R. 853

Shepherd Homes Ltd v Sandham, [1971] Ch 340

Smith v Inner London Education Authority [1978] 1 All ER 411, CA

Themehelp Ltd v West [1995] 4 All ER 215

Books

Cotter TM, Comparative Patent Remedies: A Legal and Economic Analysis (Oxford University Press 2013)

Kerr WW, A Treatise on the Law and Practice of Injunctions (Blackstone Publishing Company, 1889)

Journals

Groleau JP, ‘Interlocutory Injunctions: Revisiting the Three-Pronged Test’ (2008) 53 McGill LJ 269