Since the Autonomous Women’s Center launched the “Swear on the Law” Campaign, which called on citizens to sign a petition to make the unauthorized sharing of intimate content recordings a criminal offense, we have been told “don’t embarrass yourselves, that criminal act is already recognized by the law”.
We’ve heard the same argument from representatives of the Ministry of Justice in December 2023, when a meeting was held between members of the Working Groups for Criminal Legislation Amendments and representatives of civil society organizations.
We might then ask why we keep hearing women, who have survived this kind of abuse on the Internet, talking about how the state did not protect them, how the police laughed at them and enjoyed their intimate photographs and videos, how they were informed by the Prosecutor’s Office for High-Tech Crime that this is not a crime that is prosecuted ex officio… Of course, it would not be the first time in Serbia that a criminal offense is not prosecuted, but there’s something more here.
Serbian law recognizes the criminal offense of unauthorized publication of photographs and recordings of any content, which is prosecuted by private criminal action. That act was introduced at a time when unauthorized publication meant in the newspapers, on TV, in books, and it was much easier to determine who did it.
Today, someone who has been harmed by this criminal act committed on the Internet, cannot determine who the perpetrator is, especially if the perpetrator hides behind fake accounts, avatars, etc. Article 64 of the Code of Criminal Procedure stipulates that a private criminal prosecutor can file a private criminal complaint within three months from when they became aware of the criminal act and the suspect. This means that a lawsuit will be dismissed if it is filed against an unknown person. The same article stipulates that the private criminal prosecutor has all the rights that belong to the public prosecutor, except for those that the public prosecutor has as a state body. This means that a private criminal prosecutor does not have the ability to conduct an investigation and order a person’s phone or computer to be temporarily seized to find out if a recording of intimate content was sent from an IP address used by the suspect.
The percentage of women who dared and had the financial resources to hire lawyers to file a private criminal complaint is almost negligible. The Autonomous Women’s Center has not heard of an example of a woman succeeding in this procedure, and they were additionally obliged to compensate the perpetrators for the costs of the procedure. The few who did hire IT experts to help them, also faced the problem that an intimate recording or photos might have been uploaded via a server located in another country, so the question of the (non)jurisdiction of institutions in Serbia also arose.
The Prosecutor’s Office for High-Tech Crime (HTC) has never issued a statement on how it handled reports that intimate photos and videos of girls and women of all ages, and even a video of rape using date-rape drugs, were shared on Telegram groups. The only thing the journalists managed to find out was that after two years of investigation, about which we know nothing, the criminal charges against a Telegram group administrator were dismissed. The reason – he himself did not post intimate recordings and photos.
Although Article 35 of the Criminal Code stipulates that the person who helps the perpetrator to commit a criminal act, by creating conditions or removing obstacles to the commission of a criminal act, which the administrator did by creating and administering the Telegram group, should also be punished, the Prosecutor’s Office for HTC decided not to press charges. If the Prosecutor bothered to interview girls and women whose addresses, phone numbers and other personal data were shared in those groups, and who then had unknown men contacting them or even chasing them on the street, which jeopardized their safety, the administrator could have been prosecuted for a different criminal offense. As it stands, it was easiest for the Prosecutor’s Office for HTC to refer to the fact that there is no criminal offense under which the administrator of a group where intimate videos are shared would be responsible for actions reminiscent of so-called “command responsibility”. The administrator did not ask the members of the group if they had the consent of the person in the video to share that video, nor did he warn or exclude from the group all those who shared intimate videos without authorization.
The Ministry of the Interior, which drafted the Strategy for combating high-tech crime in 2019-2023, does not consider that the fight against cyber violence affecting adults, primarily women, deserves to be mentioned in the Strategy, as it is not already defined as a distinct activity. The introduction of the Strategy doesn’t mention ratified international documents by which the state of Serbia committed itself to improve the protection of women and other vulnerable groups from all forms of violence. Cooperation with civil society organizations that represent the rights of women, LGBTIQ people, Roma, persons with disabilities and others has not been established in the process of adopting the Strategy, nor during its implementation. The strategy is focused only on the fight against all types of financial fraud on the Internet and cyber violence against children.
And in the meantime, while the state of Serbia is sleeping, all other forms of cybercrime are taking on forms in which it will be difficult for state authorities to detect them, and where culprits are children aged 12 to 18. Let’s remember the case of the fourteen-year-olds who posted edited (deepfake) photos of their female friends and teachers, which took them between five and ten minutes to make and spread all over the Internet with one click.
More than 19,000 citizens, who signed the petition in just three days, support the initiative for the state of Serbia to join the countries that have declared the unauthorized publication of recordings of intimate content a criminal offense. After Croatia, whose provision was a model for us, Montenegro also introduced this criminal offense in December 2023 based on the initiative of women’s organizations. Although the proposal for the introduction of this new criminal offense in Serbia was submitted in May 2022, a month earlier than in Montenegro, according to the members of the Working Group for Amendments to the Criminal Code, it was not discussed at their meetings.
Therefore, we invite you to sign and share the petition. We need everyone’s support in order for the Ministry of Justice to propose to the National Assembly as soon as possible the adoption of the Law on Amendments and Supplements to the Criminal Code, which would make the unauthorized publication of recordings of intimate content a criminal offense.
The author is a lawyer and a member of the Autonomous Women’s Center
Translated by Marijana Simić
Peščanik.net, 21.03.2024.
