BEYOND PRIVACY: FAMILY LAW AND NON-CONSENSUAL INTIMATE IMAGE REGULATION

Journal of science. Lyon №70/2025 21 SOCIAL SCIENCES BEYOND PRIVACY: FAMILY LAW AND NON-CONSENSUAL INTIMATE IMAGE REGULATION Mihailovic A. PhD, Teaching Associate Faculty of Law University of Montenegro https://doi.org/10.5281/zenodo.17256215 Abstract The non-consensual dissemination of intimate images or videos, commonly referred to as "revenge porn," has become increasingly recognized as a manifestation of gender-based violence. The term "image-based sexual abuse" (IBSA) is used to underscore the violation of consent rather than any supposed motive of "revenge" when someone releases or threatens to release private, sexually explicit pictures without permission. This abuse is especially harmful in family or intimate partner situations because abusers often use trust or coercive control to their advantage, use images as leverage during divorces or custody disputes, and humiliate and blackmail their victims. During the 2020–2025 period, European law evolved rapidly. The European Union adopted its first directive on combating violence against women and domestic violence (Directive 2024/1385), national legislatures created or expanded offences, courts issued landmark judgments and scholars highlighted persistent gaps overlapping civil and criminal law frameworks. Keywords: non-consensual dissemination of intimate images, image-based sexual abuse (IBSA), genderbased violence, coercive control, Directive 2024/1385. Introduction Since 2019, legislative changes in EU Member States have demonstrated a trend toward implementing laws that make it illegal to share intimate material without consent (IBSA), along with more severe sanctions and explicit recognition of intimate partner relationships as contributing factors. Countries like France and Ireland have made it illegal not only to do the act itself but also to threaten to reveal such material. This is because victims often report being coerced and extorted. Italy, Spain, and France have added intimate partner situations as statutory aggravating factors, which means that the penalties are higher in these cases. Additionally, some Member States have removed the burden of proof to prove specific intent to cause damage. This makes it easier for the prosecution to prove its case and makes enforcement more effective. Gaps remain: some eastern European jurisdictions still rely on general privacy laws, and Germany lacks a specific offence. In May 2024 the EU adopted Directive (EU) 2024/1385 on combating violence against women and domestic violence—its first binding legislation addressing online abuse. Article 5 requires Member States to criminalise making intimate images public without the depicted person’s consent, criminalise producing or altering deepfakes for the same purpose, and punish threats to share such material. (1) The Directive recognises that IBSA often occurs in domestic settings and treats intimate-partner relationships as aggravating circumstances. It directs Member States to provide fast-track removal mechanisms and support services for victims and to consider cyber abuse an integral part of domestic violence investigations. Articles 6–8 address cyber-stalking, cyber-harassment and cyber-incitement; Article 10 sets minimum maximum sentences of at least one year for IBSA offences. This harmonisation is significant because before 2024 Member States used varied combinations of privacy, harassment and sexual-offence provisions. The Directive thus raises the floor of protection across the EU and facilitates cross-border cooperation. Complementary EU instruments include the Digital Services Act (2022), which obliges major platforms to remove illegal content promptly, and the General Data Protection Regulation (GDPR), which victims have used to request takedown of their images. (2) In practice, GDPR remedies are slow; hence the Directive’s explicit criminal-law approach for IBSA. (3) The Council of Europe’s Istanbul Convention (2011) and the Second Protocol to the Budapest Convention (2021) also encourage Member States to criminalise technology-facilitated violence. (4) A 2022 recommendation from GREVIO (the monitoring body) urged states to adopt the term “image-based sexual abuse” and emphasised that it disproportionately affects women. (5) Criminal justice challenges One of biggest challenge is under-reporting and the need for gender-sensitive policing. Victims of IBSA by partners often fear retaliation, further dissemination of images, or not being believed. In Buturugă v Romania (2020) the European Court of Human Rights (ECtHR) condemned Romanian authorities for ignoring a woman’s complaints that her husband had hacked her accounts and stored her private data; the Court emphasised that domestic violence includes psychological and cyber elements and that failure to investigate cyberviolence neglects a state’s positive obligations. (6) Additionaly, proving who uploaded material and with what intent is difficult. For instance, perpetrators may use anonymous accounts, some laws still require proof of intent to cause damage, placing burdens on victims and victims worry that legal proceedings will re-expose their intimate images as evidence. Therefore, Journal of science. Lyon №70/2025 22 digital evidence must be collected without breaching privacy laws. Image-based sexual abuse (IBSA) frequently constitutes an element within a broader continuum of coercive control. In prosecutorial practice, however, instances of physical violence and technology-facilitated abuse are often addressed in isolation, leading to a fragmented approach to victim protection and offender accountability. The EU Directive on combating violence against women calls for the systematic incorporation of technology-facilitated abuse into the evidentiary and investigative framework for domestic violence cases. Significantly, in Volodina v. Russia, the European Court of Human Rights held that the Russian authorities’ delayed and inadequate response to the non-consensual dissemination of a woman’s intimate images by her former partner constituted a violation of Article 8 of the European Convention on Human Rights. The Court underscored the positive obligation of states to adopt timely and effective measures against cyberviolence, explicitly recognising it as a form of genderbased abuse. Family-law challenges Civil courts can issue orders requiring the perpetrator to delete images and refrain from further dissemination. However, victims may struggle to convince family judges that threats to post photos constitute domestic violence, though awareness is increasing. Victims can sue for invasion of privacy or emotional distress. Civil suits may provide monetary relief but can be expensive and expose victims to further scrutiny. Without robust evidentiary protections, defendants may attempt to blame the victim or argue implicit consent. Ireland’s law clarifies that consent to create an image does not imply consent to distribute it, strengthening both criminal and civil claims. IBSA often intersects with divorce and custody disputes. Abusers may use image threats as bargaining chips. Courts must protect the victim’s confidentiality while considering the implications for child welfare. Some jurisdictions allow family courts to factor IBSA into custody decisions; for example, UK judges (outside the EU) have suggested that a parent’s attempt to shame the other with intimate images could count against their suitability for custody. Victims may avoid legal action to keep the matter private, especially in conservative communities. Access to legal aid is crucial, as many survivors lack funds to pursue civil remedies. The EU directive calls on Member States to provide free legal aid in violence-against-women cases. Case law and human rights developments European courts, especially the ECtHR, have shaped the understanding of IBSA as a human-rights violation. Two cases illustrate the evolving jurisprudence. 1. Buturugă v Romania (2020): A woman alleged that her husband physically abused her and hacked into her accounts, copying private messages and photos. Romanian authorities prosecuted only the physical violence. The ECtHR found violations of Articles 3 and 8 of the European Convention on Human Rights. It held that domestic violence includes psychological and cyber elements and criticised Romania for failing to investigate cyberviolence. The Court noted that ignoring cyber-abuse reflected “excessive formalism” and neglected the state’s positive obligations. The judgment underscores that states must treat digital abuse as part of the domestic-violence continuum. 2. Volodina v. Russia (2021) Anastasiya Volodina’s ex-partner hacked her social-media accounts, posted her intimate images, created fake profiles and sent her death threats. Russian authorities did not open a criminal investigation for almost two years. The ECtHR held that Russia breached Article 8 by failing to protect her right to private life and criticised the ineffective implementation of existing laws.The Court characterised the non-consensual dissemination of intimate images as a form of gender-based cyberviolence and stressed that states must take proactive measures to prevent and respond to such harm. The judgment drew on international reports defining cyberviolence and emphasised that positive obligations include establishing a legal framework, preventing foreseeable risks and conducting effective investigations. (7) Victimological findings Research on IBSA victimisation reveals profound psychological, social and economic consequences, particularly when the perpetrator is an intimate partner. A 2023 study of 274 Portuguese women found that 16 % had experienced IBSA. (8) Victims reported higher levels of humiliation, anxiety and depression, and lower self-esteem than non-victims. The betrayal by a trusted partner compounds the trauma and can lead to long-term trust issues, social isolation, lost employment opportunities and relocation. When the abuser is a spouse or partner, extended family members may see the images, causing rifts and stigma. In family settings the harm extends to children: some victims’ children have been bullied at school after peers discovered the parent’s images. The shame and reputational damage can result in victims leaving jobs or dropping out of education. Studies note that many jurisdictions lacked provisions for deepfakes, non-consensual recording of images, or threats to share images. Some laws still require proof of intent to harm, hindering prosecutions. Scholars also highlight the need to criminalise threats as a standalone offence and to cover non-consensual creation of images (e.g., hidden cameras). Legal commentators explore using data-protection law and tort law to hold platforms accountable. Under the GDPR, victims can claim compensation when platforms fail to remove reported content. The EU’s Digital Services Act will require platforms to have fast notice-and-takedown procedures for IBSA. Towards an integrated legal response - bridging criminal and family law The 2020–2025 period has seen meaningful progress in European IBSA legislation. The EU directive provides a baseline that Member States must meet by 2026. Implementation is crucial: states must adopt specific offences, including deepfakes and threats; ensure that penalties reflect the gravity of harm; and treat IBSA within domestic-violence frameworks. Countries without specific laws, such as Germany, should enact Journal of science. Lyon №70/2025 23 dedicated statutes. States should designate aggravating circumstances for partner-perpetrated IBSA and provide sentencing guidelines to avoid inconsistency. Because IBSA often arises during divorce or custody disputes, coordination between criminal and family courts is essential. Specialised domestic-violence courts could handle criminal charges, civil protection orders and family matters concurrently, reducing fragmentation. Information about criminal convictions should inform custody evaluations, and restraining orders in family court should include provisions against image dissemination. Victims require integrated services: legal aid, psychological counselling, and technical assistance (such as help with takedown requests). Support organisations should be trained on IBSA dynamics and available remedies. The EU directive’s provisions on victim support must be translated into national programmes. States should fund helplines and digital-safety tools (for example, hash-matching systems). Offenders could be required to cover the cost of content removal and therapy as part of restitution. (9) Additionaly, platforms play a critical role. They must implement robust, user-friendly mechanisms to report and remove non-consensual content promptly. The Digital Services Act mandates such processes; regulators must enforce compliance. A central EU portal could streamline cross-platform reporting. Platforms should adopt hash databases to prevent re-uploads of flagged images. Transparency reports should detail how many IBSA reports they received and how quickly they responded. Governments, schools and media should emphasise that sharing someone’s intimate image without consent is a serious offence. Public campaigns should discourage victim-blaming and highlight the legal consequences for perpetrators. Education programmes should teach digital ethics and consent from an early age. Conclusion The unauthorized sharing of intimate images may give rise to liability under both civil and criminal law. (10) Non-consensual sharing of intimate images is not an unfortunate by-product of modern technology but a violation of fundamental rights. In family settings it becomes a tool of coercive control that magnifies existing power imbalances and inflicts severe trauma on survivors. The years 2020–2025 brought significant advances: the EU’s Directive 2024/1385 establishes a comprehensive legal framework, national laws in France, Italy, Ireland and Spain have introduced clear offences and increased penalties, and courts have recognised IBSA as part of domestic violence. Yet challenges persist—uneven implementation, under-reporting, and gaps in civil remedies. A harmonised, victim-centred approach is needed: criminal law must deter and punish, civil law must offer swift protective measures and compensation, and society must foster respectful digital behaviour. Only through coordinated legislative, judicial, educational and technological efforts can victims’ autonomy and dignity be restored. References: 1. European Union. Directive (EU) 2024/1385 of the European Parliament and of the Council of 14 May 2024 on combating violence against women and domestic violence. Off J Eur Union. 2024 May 24;L 2024/1385. Available from: https://eur-lex.europa.eu/eli/dir/2024/1385/oj/eng 2. European Union. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union. 2022 Oct 27; L 277:1–102. 3. European Union. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Official Journal of the European Union. 2016 May 4; L 119:1–88. 4. Council of Europe. Convention on Cybercrime (Budapest Convention). CETS No. 185. Opened for signature 23 November 2001, entered into force 1 July 2004. 5. Council of Europe. Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO). “Building Trust by Providing Support, Protection and Justice” – First thematic evaluation round launched October 2022 [Internet]. Strasbourg: Council of Europe; 2022 [cited 2025 Aug 26]. Available from: GREVIO thematic evaluation procedure "Building Trust by Providing Support, Protection and Justice" launched October 2022. 6. European Court of Human Rights. Buturugă v. Romania, Application No. 56867/15, judgment of 11 February 2020. 7. European Court of Human Rights. Volodina v. Russia (no. 2), Application No. 40419/19, judgment of 14 September 2021. 8. Umbach, Rebecca & Henry, Nicola & Beard, Gemma. (2025). Prevalence and Impacts of ImageBased Sexual Abuse Victimization: A Multinational Study. 10.48550/arXiv.2503.04988. 9. Romania V. Shameful Traces and ImageBased Sexual Abuse: The Case of Tiziana Cantone. In: Comunello F, Martire F, Sabetta L, editors. What People Leave Behind. Marks, Traces, Footprints and their Relevance to Knowledge Society. Cham: Springer International Publishing; 2022. p. 347–359. doi: 10.1007/978-3-031-11756-5_22. 10. Sharma V. Understanding Non-Consensual Dissemination of Intimate Images Laws in India with Focus on Intermediary Liability. NUJS Law Review. 2021;14(4):1-19.