Is it all part of the game? Victim differentiation and the normative protection of victims of online antagonism under the European Convention on Human Rights

Abstract

This article analyses the issue of online antagonism (defined as antagonistic harassment, defamation, insults and threats online) and the positive obligations of states to counter such antagonism under the European Convention on Human Rights, from a legal and victimological perspective. The article illustrates how the necessary balancing between positive obligations to protect privacy under article 8, and the protection of freedom of speech under article 10, will result in different levels of protection depending on the victim and the type of victimisation in question. This may affect the possibilities for individual victims to gain legal redress, specifically access to the criminal justice system. By comparisons to the current Swedish legislative context, the article highlights some avenues for legislatures to enhance protection for certain groups without interfering with article 10. It also concludes that a failure to protect victims of online antagonism through criminal law may ipso facto weaken the foundations of public discourse that article 10 is supposed to protect, which should be taken into account in a balancing of the rights in question.