The criminalisation of non-consensual sharing of intimate material under EU law: Harm matters, privacy doesn’t

Among other measures, Article 5 of the EU Directive 2024/1385 requires Member States to criminalise the non-consensual sharing of intimate material. This forms part of a broader framework for addressing violence against women. One question that has so far been overlooked is whether Member States may require, when transposing Article 5, that the victim had a legitimate expectation of privacy concerning the material. This question has significant legal consequences. While Article 5 does not mention privacy or the circumstances in which the material was produced, some Member States, such as Italy and Spain, have introduced criminal offences that depend on the existence of a private sphere that is protected by law. If Article 5 does not permit such limitations, these national approaches could undermine the Directive’s objective of minimum harmonisation. This article addresses this issue through a comparative and doctrinal analysis. First, it examines the Italian and Spanish legal frameworks governing the non-consensual distribution of intimate material. It then undertakes a textual, systematic and teleological interpretation of Article 5. The article argues that the EU criminalisation model does not include any privacy requirement. Accordingly, Member States cannot make criminal liability dependent on such an element when transposing Article 5 of the EU Directive 2024/1385.