Il 7 e l’8 settembre 2022 si è svolta la prima conferenza dal titolo “Digital and online violence: regional perspectives” presso Horwood House, Regno Unito, tenuta da The Open University e Local Government Data Research Centre ObserVaw. La conferenza aveva l’obiettivo di riunire esperti interdisciplinari e internazionali per facilitare lo scambio di esperienze e conoscenze nel contrasto ai fenomeni di violenza digitale e online, come hate speech e cyberstalking. Elisabetta Stringhi ha partecipato al convegno portando il seguente intervento:
The Italian approach to tackling non-consensual dissemination of intimate images.
The Italian lawmaker pursued a mixed approach to address the non-consensual dissemination of intimate images (“NCII”).
Following calls for criminalising the unauthorised spreading of sexual images, a rushed parliamentary process led to the adoption of new Article 612-ter of the Italian Criminal Code. Indexed as “Unlawful dissemination of sexually explicit images or videos”, the Article aimed at covering both the primary and secondary distribution of said content. By Decree-Law No. 139/2021, the Italian lawmaker granted the DPA new specific competencies under Article 144-bis of the Italian Data Protection Code for the combat of NCII. Accordingly, offended data subjects have access to a steady reporting procedure and the Italian DPA may adopt the measures provided in Article 58 EU Regulation 2016/679 against online platforms. Furthermore, the DPA joined Meta’s fingerprinting pilot program based on hashing comparison technology, to prevent possible upload of non-consensual intimate images on Facebook and Instagram. New Article 612-ter presents, however, several critical issues, due to its poor wording. Furthermore, it is uncertain how the Italian courts will interpret it, with special regard to the new emerging deep fake phenomenon. Within this reform, the Italian lawmaker failed to introduce a more holistic bill including a set of preventive educational measures. To prevent NCII, first and foremost a culture of consent should be cultivated among users by means of education rather than under threat of prosecution. Unlike the legislative approach adopted to contrast cyberbullying, no specific educational programmes were planned in schools or workplaces, nor specialised psychological support was implemented in anti-violence centres. While it is necessary to await the Italian DPA’s practical implementation of new Article 144-bis, the partnership with Facebook and Instagram appears controversial, for IT and socio-technical reasons. Besides, despite the apparent policy effort to tackle NCII, online platforms have all interest in hosting content that creates engagement and gains the most interactions, for monetization purposes. To properly understand the regional approach to the phenomenon, we must therefore have a preliminary grasp of the sociological background, by focusing on the occurrence of NCII in Italy. Following that, based on an in-depth review of Italian sociological, IT and legal aspects, including Italian law and case-law, the essay aims to highlight current gaps and issues of the legal framework, as well as to suggest preventive and supportive measures for offended data subjects. To what extent will the Italian courts interpret the new Article 612-ter of the Criminal Code? Could new Article 612-ter comprehend the emerging deep fake
issue? How will the Italian DPA use the powers granted under recent Article 144 bis of the Italian Data Protection Code? Will online platforms comply with adopted measures by the DPA? What could be possible preventive and supportive measures?
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