On 3 December 2024, the European Court of Human Rights (Court) delivered judgment in MŞD v Romania, its third judgment concerning cyberviolence against women following Buturugǎ v Romania and Volodina v Russia (No 2). In each judgment, the Court found that the respective states’ failures to prevent, protect from and punish instances of cyberviolence against the applicants committed by their former partners violated their right to respect for their private life in Article 8 of the European Convention on Human Rights. Whilst the recognition of cyberviolence against women as a human rights violation is undoubtedly a welcome development, MŞD suffers from the same analytical shortcomings that pervaded Buturugǎ and Volodina (No 2) insofar as it creates inconsistencies in the Court’s jurisprudence on gender-based violence and undermines the gravity of cyberviolence against women.

In MŞD, the applicant’s former partner disseminated her intimate photographs to her family and friends by creating fake Facebook profiles under her friends’ names, while also posting the photos along with her name, address, and mobile number on websites advertising for escort services. In finding a violation of Article 8, the Court found that: first, Romanian national law was inadequate as it did not criminalise acts of ‘revenge porn’ where the victim had consensually shared intimate photographs with the perpetrator, who subsequently disseminated them non-consensually (paras 128-137); and, secondly, the national authorities had failed to promptly and thoroughly investigate the applicant’s complaints, leading to one of the offences becoming time-barred (paras 138-157), which mirrors the facts and the Court’s reasoning in both Buturugǎ and Volodina (No 2).

As I have argued elsewhere in respect of Buturugǎ and Volodina (No 2), the Court’s recognition of cyberviolence as an Article 8 violation is a positive step, especially given the historically fraught relationship between the field of international human rights law and the issue of violence against women. However, notwithstanding this progress, the judgment in MŞD is marred by the same analytical deficiencies as Buturugǎ and Volodina (No 2).

First, the framing of cyberviolence as an Article 8 (private life) violation rather than an Article 3 (prohibition on inhuman or degrading treatment) violation is inconsistent with the Court’s case law on “offline” instances of violence against women. Despite inconsistencies in its early case law on the subject, the Court’s recent judgments consistently characterise gender-based violence under the inhuman treatment limb of Article 3, with some judges even exhibiting a willingness to analyse it under the torture limb. Despite the Court’s insistence in Buturugǎ, Volodina (No 2) and MŞD that cyberviolence is as serious as, and frequently occurs in parallel with, “offline” violence, its judgments are inconsistent with these remarks.

Secondly, the Court’s reluctance to characterise cyberviolence against women under Article 3 undermines its gravity. Article 3 is an absolute right and peremptory norm of international law that permits no derogation (jus cogen). Indeed, the Court’s own case law recognises that a violation of Article 3 is viewed more seriously than a violation of Article 8, and such a recognition has driven feminist international lawyers to argue for the recognition of violence against women as torture. Such a recognition transcends symbolic significance: it sends a strong message to Member States that cyberviolence is as grave as other forms of violence against women and requires the same level of diligence, attention and resources.

Finally, the Court’s finding that it was unnecessary to examine whether there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 is problematic (paras 160-165). As Fleur van Leeuwen argued in relation to Buturugǎ, there is a strong connection between gender-based discrimination and violence, including cyberviolence. Further, the Court’s own case law on physical and psychological violence against women has recognised violations of Article 14 in conjunction with Articles 2, 3 and/or 8, yet the Court appears reluctant to do so in cases concerning cyberviolence, notwithstanding the Court’s exhortation that cyberviolence is closely linked to “offline” forms of violence. This omission is even more striking in MŞD than in Buturugǎ, given that the applicant expressly complained of a violation of Article 14 in conjunction with Article 8. Moving forward, it is hoped that the Court undertakes its analyses of cyberviolence against women under Article 14 in conjunction with Article 3.

While the Court’s recognition of cyberviolence against women as a violation of Article 8 is a welcome development and keeps the Court’s jurisprudence apace with the broader progress on this issue (such as the European Parliament’s recently adopted directive on combating violence, including cyberviolence, against women), the Court’s failure to characterise the issue under Articles 3 and 14 leaves its analysis wanting. Not only would framing cyberviolence as a violation of these provisions promote consistency with the Court’s case law on “offline” gender-based violence, it would also capture the gravity of the issue.