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T Is There a Case for Anonymity in Social Media
THE SOCIAL CONTEXT OF THE LAW: IS THERE A CASE FOR ANONYMITY IN SOCIAL MEDIA?
From a panel discussion held on 26 October 2021 with Master Andrew Caldecott (5RB), Caroline Addy (Doughty Street Chambers), and Adam Wagner (Doughty Street Chambers), moderated by Master Guy Fetherstonhaugh (Treasurer, 2020 and 2021).
Master Guy Fetherstonhaugh: Tonight’s question is the case for anonymity in civil proceedings and in social media generally. It’s not always a bad thing, anonymity. Some of us will well remember the admonition of Captain Mainwaring: “Don’t tell him your name, Pike!”
I was brought up in Jersey and, of course, that was occupied by Germany during the Second World War. There’s a fascinating museum in Jersey about the occupation. And one of the rather chilling exhibits is the letters that were written by some of the islanders to the German authorities, basically ratting on their neighbours, saying – and I anonymise the name: “You should know that ‘Mrs Voisin’ has a radio in her loft upstairs.”
And there would then be a search of the house. Mrs Voisin was carted off to Ravensbrück and never seen again. Letters like that were written anonymously of course. But there were checks on their use or abuse. After all, it took an awful lot for somebody to go out and post the letter to the Germans, and they could have been caught in the act. What we see much more recently in modern times is an explosion in anonymous communications, many of them completely undetectable.
And the question is, for tonight’s debate, whether that’s a good thing, are there any good aspects of anonymity that should continue to be protected? Whether it’s practical to try and do away with anonymity – matters of that sort. Who better to debate this topic tonight than our three speakers, starting with Andrew Caldecott, King’s Counsel from 5 Raymond Buildings. Our second speaker will be Caroline Addy from Doughty Street Chambers. Our third speaker is Adam Wagner, from Doughty Street Chambers as well. Master Andrew Caldecott: When I started at the Bar, ‘online harm’ would have been thought an aggravated consequence of railway trespass. But now it is at the centre of political and social debate for a wide variety of reasons. I can name four by way of example. Firstly, radicalisation – and I emphasise that the director of MI5 said the other week, that’s as true of white supremacist organisations as it is of what we might otherwise call ‘the usual suspects’. Secondly, suicides and extreme distress caused by bullying. Thirdly, racist abuse of footballers and others. And lastly, and not unimportantly, fake news, often generated by foreign states.
The starting point is the rule we’re taught in the cradle about statutory construction: look for the mischief. But in a case where freedom of expression is engaged, you must also look at the virtues of the particular form of speech you’re analysing. And a good starting point is this statement by the United Nations rapporteur: “Throughout history, people’s willingness to engage in debate on controversial subjects in the public sphere has always been linked to possibilities for doing so anonymously. The Internet allows individuals to access information and to engage in public debate without having to reveal their identities.”
This feature is by no means unique to the Internet. In 1995, Mr Justice Stephens, an American judge, observed: “Under our Constitution, anonymous pamphleteering is not a pernicious fraudulent practice, but an honourable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority.”
And one should also consider the places where anonymity is under siege. Take Russia since 2012. The Federal Service Communications maintains a list to enable it to block URLs, domain names, and IP addresses. It was originally designed to prevent drug-dealing, child pornography and suicide-related material, but in 2014 it was deployed to block criticisms of government and local administration. In 2017, Russia banned all anonymised VPN networks which sought to criticise government, and in 2019 heavy fines were introduced.
In China, Sina Weibo, a micro-blog platform, had 500 million users in late 2018. They introduced real live registration, and intense government interference immediately followed. And bear in mind that Twitter and Facebook are blocked in China. Be careful what you wish for.
Now, what weapons does English law currently offer against the malign anonymous poster? Well, obviously the criminal law has terrorist and postal communications legislation directed at harmful content. But the problem is a prosecution requires an identifiable defendant. In civil proceedings, there’s the Norwich Pharmacal jurisdiction, designed to identify the anonymous wrongdoer, but it’s slow and costly. And often it’s unproductive faced with Tor and Proton emails, and all the other weapons available to the cloaked Internet user.
The law of harassment can be used against persons unknown and then served on the relevant address. And that was done recently by Mr Justice Saini in a case called Blackledge v Person(s) Unknown, where he said: “The facts of this case are a striking example of how the Internet and social media can be used to abuse and damage innocent individuals with apparent impunity.” Another area of development is the law of contempt. In the Angela Wrightson murder case, the first jury was discharged following prejudicial posts on social media attached to media Facebook pages, and then shared. They reached both the witnesses and the defendants, and the Divisional Court ordered that the media should deactivate their comment columns on the trial coverage during the retrial.
The Online Safety Bill seeks to impose duties of care in relation to illegal content, with particular emphasis on children, on search services and user-to-user services, and it gives OFCOM a role in relation to codes of practice. But section 23 imposes a duty to protect freedom of expression and privacy of users within the law. And that highlights a core issue in our discussion. Does an anonymous social media user have a reasonable expectation of privacy in his or her identity in this jurisdiction?
In a case called Author of Blog v Times Newspapers, Sir David Eady held that blogging was an essentially public activity and didn’t give rise to any reasonable expectation of privacy. One possible solution is requiring the registration of a real identity behind your public anonymous identity, open to release if a court considers it necessary.
Does an anonymous social media user have a reasonable expectation of privacy in his or her identity in this jurisdiction? In a case called Author of Blog v Times Newspapers, Sir David Eady held that blogging was an essentially public activity and didn’t give rise to any reasonable expectation of privacy.
Caroline Addy: It’s worth reminding ourselves of the situation before Internet use was widespread. Anonymous participation in any public discourse was actually quite rare. Attitudes to anonymity were generally negative. That’s why we call anonymous letters poison pen letters. And when we look at litigation, the procedure has always been very much that anonymity is exceptional, and its use kept within very strict boundaries. Open justice is essential, and that requires knowing who people are.
Justice Toulson said: “Who will guard the guards themselves? In a democracy where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light, and allows the public to scrutinise the workings of the law, for better or for worse.”
Derogations from this have traditionally been pretty unusual and required strict justification. And in the media the ability to keep a source anonymous has been subject to similar boundaries and rigorous justifications. In both situations, the key element to enabling anonymity is that there is somebody – an intercessor, whether it’s the legal representative or the journalist – who has effectively researched and considered the competing considerations, and is in some way, by their professional expertise and standing, a guarantor to the authenticity or likely authenticity of the source.
The issue we have now is how to deal with a situation where anonymity is not exceptional, it’s routine. The consequences of routine anonymity are paradoxical. It’s what makes this subject so interesting and so difficult, because it may allow, for example, brave dissent against oppressive regimes. But it also allows backlash against that sort of dissent, and a distortion of whether or not the dissent or the countervailing view is the one that has the widest support. It enables many people who are incredibly vulnerable, marginalised, discriminated against to find community online and to find support, because they are anonymous. And at the same time by doing that very thing, it can permit what are actually extreme and dangerous views or proclivities to become normalised. Because online you consider that you are one of many, not one of the few. So, it enables both truth-telling and lying.
And the difficulty that we have is that once everyone is anonymous, then openness and transparency become impossible. And that has real consequences for our public discussion of just about anything. We end up in our individual silos, where nobody puts their name to particular positions. The other thing that I think happens which is so dangerous for democracy, is that anonymity flattens all voices. We don’t know who people really are. We can’t assess their experience, their knowledge, their credibility or their judgement. They’re all just names on a screen with no form of CV that we can actually assess or check ourselves. It’s perhaps not surprising then that most of what appears online is immediately and vociferously countered by others. There is no trust in the large avalanche of information we receive because we can’t do that important assessment.
Now we find that what occurs online has really become something that cuts across any number of protections, legal or otherwise, and delicate balancing acts that we have previously relied upon in civic society. And its ability to do that, to undermine so many areas – whether it be the Dark Web and selling drugs, or political discourse, or upsetting criminal trials by the dissemination of prejudicial information – is all fuelled by the ability to remain anonymous.
It won’t have escaped your attention that the effects of this are felt very unequally across society. If you’re a woman, the sort of threatening behaviour and abuse to which you are subject online is of a different order of magnitude from that faced by men. And for every other protected characteristic you may have, that increases more and more and more.
It’s really for us to decide what kind of cultural value we place on anonymous speech, and whether the game is worth the candle. And I would say that the harmful consequences are such that we can’t continue with the status quo. Only the rich or very well supported can really take this on by means of civil proceedings. I think criminal prosecutions are as much guided by what hits the headlines as what really is the most egregious case, but we have to decide as a society where we feel this ranks as a harm, and what we’re going to do about it.
Adam Wagner: I want to start with Homer Simpson, who said of alcohol, that it’s both the cause of and the solution to all of life’s problems. We might think, from reading the newspapers or reading online commentary, that social media at the moment is playing that role in our collective consciousness – that it is both the cause of and the solution to all of life’s problems. I don’t think that’s right. I think that social media is very present in our existence, in our public conversation at the moment, but it in many ways is the effect and not the cause.
There are some important reasons why people want to become anonymous. I’ll just pick up on four. First of all, that they want to express themselves, but don’t want their employers to see what they are expressing. It’s clear from the current debates, that it’s very easy to be misunderstood or judged harshly for opinions which may even be very reasonable opinions or may have been reasonable last week but are not reasonable now, or may have been reasonable and – may be objectively reasonable – but because something is happening in another part of society, that suddenly for a period they’re not reasonable.
Secondly, people may be afraid of governments and other actors who may retaliate against them for expressing unpopular views or organising protests. In this jurisdiction, that may be less of an issue, but it’s certainly a very big issue in other jurisdictions – in Russia and China and other places without as much protection from liberal democratic institutions.
A third reason: people may have a different gender identity online than their gender identity in their life. They may be testing out a new gender identity that they would not want yet for people to know about. A fourth reason, and this comes back to the vicious circle that Caroline identified, that for people who suffer online or indeed offline harassment or stalking, having an anonymous account can be an easy way to carry on engaging in social media without having to face the torrents of abuse that define online harassment.
Under human rights law, anonymity is one of those very unusual issues which makes friends of two rights which are usually at loggerheads: the right to privacy under article 8 and the right to freedom of expression under article 10. Both of those rights are what’s known as ‘qualified rights’. So, whilst they do protect, in the case of article 8, the right to private and family life, home, and correspondence and, in article 10, the right to freedom of expression, including holding opinions, receiving and imparting information, those rights can be interfered with, proportionately, for a legitimate aim. For example, for the safety of others or various other reasons. Under human rights law, anonymity is one of those very unusual issues which makes friends of two rights which are usually at loggerheads: the right to privacy under article 8 and the right to freedom of expression under article 10.
And that’s how the case law has played out. There have been various public statements on anonymity, and in fact, generally speaking, the public statements of international courts have been pro anonymity, although the case law has been a bit more nuanced. So, for example, the Inter-American Commission on Human Rights recommended in 2013 that anonymous platforms should be promoted, and the use of authentication services used proportionately. And they said the protection of anonymous speech is conducive to the participation of individuals in public debate, since by not revealing their identity, they can avoid being subjected to unfair retaliation for the exercise of a fundamental right.
The Council of Europe’s Declaration on freedom of communication on the Internet, which was in 2003, said that member states should respect the will of users of the Internet not to disclose their identity, but also said, importantly, this does not prevent member states from taking measures and cooperating in order to trace those responsible for criminal acts in accordance with national law and the various other protections. There’s lots of case law now, both here and in Strasburg, about the principles to be applied when holding blogs or platforms responsible for anonymous comments which are posted on their sites.
So, my point is that anonymity on a principled basis is important. But the second point is that on a practical basis, it’s very difficult, if not impossible, to create a system which doesn’t do more harm than good.
Guy Fetherstonhaugh KC Andrew Caldecott KC Caroline Addy Adam Wagner
For the full video recording of this lecture: innertemple.org.uk/anonymity
