Manish Tewari | Behind all social media ills: Not privacy, but anonymity

The Internet or the World Wide Web was the most impudent tryout in anarchy and it succeeded beyond the wildest dreams of its progenitors, the Defense Advanced Research Projects Agency (DARPA). The Internet today represents the largest ungoverned space on Planet Earth. Never before in the march of the human civilisation has so much power concurrently resided on so many fingertips. There is more data that is churned out today on a daily basis than from the dawn of civilisation to the turn of the third millennium. The future of the human civilisation in the foreseeable future will rest on the intersection of the brick and mortar civilisation that evolved over five thousand years and a virtual civilisation that is taking shape since the middle of the nineteen nineties.

However every new milieu brings with it its own set of challenges. In the case of the Internet it is the dark net and most portentously its poster child — social media and the dares it throws to the the nation state system given its borderless character.

Today there are 5.03 billion Internet users around the world and 4.9 billion of these use social media. The average time spent using social media is two-and-a-half hours every day. Most of these users are in the age group of 15-35. An ominous characteristic the Internet has proliferated is anonymity. Though, anonymity is not a new phenomenon. British literary historian James Raven articulated that 80 per cent of novels published in England in 1750-1790 were anonymous or written under a pseudonym for fear of retribution by the tyrants of those times.

Today, online platforms like Twitter, Facebook, Instagram, Reddit, etc., are awash with anonymous accounts. These accounts use fake names and personas to engage in online activities. There may be certain positives to being anonymous or pseudonymous in the virtual civilisation including and not limited to freedom to air unorthodox views without fear of repercussions. However, unchecked proliferation of anonymous accounts has weaponised the Internet, turning it into a veritable orgy of hate, violence, intimidation and vitriol.

One of the earliest cases of tragedy by an anonymity dates back to 2006 wherein a 13-year-old in the United States committed suicide after an anonymous user on MySpace cyber bullied her. The perpetrator turned out to be her adult neighbour using a pseudonymous profile. This case illustrates the dangers that anonymity poses. Unfortunately, nothing has changed since then in terms of laws that proscribe or restrict anonymity on the Internet.

Defenders of anonymity are vociferous that it is intrinsic to the freedom of speech and expression. But can there be or should there be a right to anonymity? Can expression that is advantageous to public discourse not be disseminated without having to hide behind a fake name?

There exists no express right to anonymity in either human rights law or most constitutions around the world. In fact, Article 5(IV) of Brazil’s constitution expressly bars anonymous speech. It states as follows: “the expression of thought is free, anonymity being forbidden”. In other jurisdictions, anonymity is usually considered a part of the right to free expression though is not expressly protected. For instance, there is no general right to anonymity in Canada, although the courts there have tied it to the right to privacy in cases that involved a party seeking the identification of anonymous users.

Courts in common law jurisdictions have adopted the standard developed by the House of Lords in 1973 in Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1973] 2 All ER 943 (UKHL) while answering the question of whether users who post defamatory material be identified. The Pharmacal standard states that for a third party to disclose information the plaintiff must show a bona fide claim and that the third party was somehow involved in the alleged tortious act. This is a difficult burden to discharge and such a standard is archaic considering the current stage of Internet penetration.

In the US, given the First Amendment protection to free speech, courts have generally not interfered with anonymity. In Talley v. California, the US Supreme Court upheld the anonymous distribution of election pamphlets. In NAACP v. Alabama (357 US 449), the Court held that NAACP, a civil rights organisation, was not required to give a list of its members and they could stay anonymous because it allows “…the members to pursue their lawful private interests privately and to associate freely with others”. What is of note is that these cases protect anonymity in very specific cases involving political rights. This can not be extrapolated to argue that these are judicial precedents recognising a constitutional right to anonymity.

What these rulings do is recognise that compelled disclosure of a person’s identity in peculiar circumstances would violate the First Amendment associational rights. However those cases, too, never acknowledged any general right to anonymity. Indeed, Justice Scalia’s dissent in Mcintyre v. Ohio (514 US 334) notes that the existence of a generalised right of anonymity was rejected in Lewis Publishing Co. v. Morgan, 229 US 288 (1913).

In the absence of any specific right to anonymity the deleterious effects of namelessness on society’s other legitimate interests must, therefore, be clinically dissected. It is a truism the benefits of anonymity qua legitimate expression are increasingly outweighed by the harms it perpetrates. Cyber harassment, bullying, crime, intellectual property infringements and cyber hate are some of the monsters anonymity has morphed into.

Cyber mobs, always on the lookout for unsuspecting victims have proliferated ad nauseam. According to FBI’s Internet Crime Report 2021, a record 8,47,376 complaints of cybercrime were reported to the FBI in 2020. Cybercrime in India has gone up from 3,377 cases in 2012 to 50,035 cases registered in 2020. Research shows that anonymity increases the “de-individuation effect" that results in lower self-control and a greater propensity to toward anti-social speech.

The recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and the amendments thereto do not address this challenge of anonymity. It obligates social media platforms to make reasonable efforts to stop harmful content from being hosted by them. During scrutiny of the Personal Data Protection Bill by a Joint Committee of Parliament I had argued for mandatory verification of all social media accounts. It was a prominent part of my dissent that compelled me to reject the bill en-toto. The bill, subsequently, was withdrawn by the government.

Monetisation of Blue Ticks as implemented by Elon Musk will not do. Social media platforms must ensure mandatory verification and traceability of every user active on their platform. There is no right to anonymity.