The Diotima Centre considers the addition of the new article 346 to the Penal Code on “revenge pornography” a positive development. However, we cannot but express our concern about the way in which it has been introduced in an irrelevant directive, which concerns the fight against fraud and forgery.
Besides, the cumulative legislation of many issues in the context of a draft law, as the GNCHR has also pointed out, violates the rules of good and effective law-making.
At the same time, we are very concerned about the phrase with which the article begins (para. 1. “Anyone who without right communicates to a third person … audio-visual material …”), which is restrictive and completely inappropriate to deal with the phenomenon, as in most cases of sexual abuse through images the person who distributes the material owns it after the victim has shared it with them, but the victim has not given their consent to the communication/sharing.
Therefore, we propose to replace the phrase “anyone without right” with the phrase “anyone without the consent of the person depicted”, in order to make the aim of the legislation clear.
It is also not clear what the paragraph concerning minors adds or differentiates, given that the offence of child pornography is already provided for and punishable under Article 348A of the Penal Code, even defining the use of a computer or the internet as an aggravating circumstance.
Apart from the imprisonment, which with the new Article 346 can reach eight (8) years, tightening the penalty for child pornography, the other provisions of the article are already included in Article 348A of the Penal Code, which is more detailed and more complete.
Finally, it is worth noting that the terminology “revenge pornography” introduced by the draft law is not in line with the terminology adopted by the European Parliament, and is restrictive as it does not take into account the more inclusive term “image-based sexual abuse”.
According to it, “revenge pornography” is only one of the expressions of this form of gender-based abuse through new technologies, which includes many different forms of violence (see here).
In any case, however, regardless of the variety and number of tactics and means used by abusers on/offline, the goal remains common: disruption, revenge, threat, fear, economic and sexual exploitation, or even encouragement of mass attacks and malicious acts against women.
Finally, we would like to highlight the need to incorporate this article in a way that ensures its implementation and especially the timely and comprehensive protection of victims of online gender-based violence, hoping that a provision will not remain inactive and will be accompanied by appropriate implementation measures.
