Manish Tewari | Behind all the evils of social media: not privacy, but anonymity
The Internet or World Wide Web has been the most brazen attempt at anarchy and it has succeeded beyond the wildest dreams of its ancestors, the Defense Advanced Research Projects Agency (DARPA). The Internet is the largest ungoverned space on planet Earth today. Never before in the march of human civilization has so much power resided simultaneously on so many fingers. There is more data being produced daily today than from the dawn of civilization until the turn of the third millennium. The future of human civilization for the foreseeable future will rest on the intersection of the brick and mortar civilization that has evolved over five thousand years and a virtual civilization that has been taking shape since the mid-nineties. .
However, each new environment brings its own set of challenges. In the case of the internet, it is the dark net and especially its star child – social media and the challenges it poses to the nation-state system given its borderless character.
Today, there are 5.03 billion Internet users in the world and 4.9 billion of them use social networks. The average time spent on social networks is two and a half hours a day. Most of these users belong to the age group of 15 to 35 years old. One disturbing feature that the Internet has proliferated is anonymity. However, anonymity is not a new phenomenon. British literary historian James Raven explained that 80% of novels published in England between 1750 and 1790 were anonymous or penned under a pseudonym for fear of reprisals by the tyrants of the time.
Today, online platforms like Twitter, Facebook, Instagram, Reddit, etc., are full of anonymous accounts. These accounts use fake names and personas to engage in online activities. There may be certain benefits to being anonymous or pseudonymous in Virtual Civilization, including, and not limited to, the freedom to express unorthodox opinions without fear of repercussions. However, the uncontrolled proliferation of anonymous accounts has militarized the internet, turning it into an orgy of hate, violence, intimidation and vitriol.
One of the first cases of tragedy by anonymity dates back to 2006, when a 13-year-old girl in the United States committed suicide after an anonymous user on MySpace bullied her. The attacker turned out to be his adult neighbor using a pseudonymous profile. This case illustrates the dangers of anonymity. Unfortunately, nothing has changed since then in terms of laws that outlaw or restrict anonymity on the Internet.
Anonymity advocates claim it is intrinsic to freedom of speech and expression. But can or should there be a right to anonymity? Can’t an expression advantageous for public discourse be disseminated without having to hide behind a false name?
There is no express right to anonymity in human rights laws or in most constitutions around the world. In fact, Article 5(IV) of the Brazilian constitution expressly prohibits anonymous speech. It specifies: “the expression of thought is free, anonymity being forbidden”. In other jurisdictions, anonymity is generally considered part of the right to freedom of expression, although it is not expressly protected. For example, there is no general right to anonymity in Canada, although courts have linked it to the right to privacy in cases involving a party seeking to identify 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  2 All ER 943 (UKHL) while answering the question of whether users who post defamatory material should be identified. The pharmaceutical standard states that for a third party to disclose information, the claimant must show a good faith claim and that the third party was involved in some way in the alleged wrongdoing. This is a difficult burden to bear and such a standard is archaic given the current stage of Internet penetration.
In the United States, given the First Amendment’s protection of free speech, courts have generally not interfered with anonymity. In Talley v. California, the United States Supreme Court has upheld the anonymous distribution of election pamphlets. In NAACP vs. Alabama (357 US 449), the Court ruled that the NAACP, a civil rights organization, was not required to give a list of its members and that they could remain anonymous because it allowed “…members to pursue their private interests in private and to associate freely with others”. It should be noted that these cases protect anonymity in very specific cases involving political rights. This cannot be extrapolated to argue that these are legal precedents recognizing a constitutional right to anonymity.
What these rulings do is recognize that forcing the disclosure of a person’s identity in specific circumstances would violate First Amendment rights of association. However, these cases also never recognized a general right to anonymity. Indeed, Justice Scalia’s dissent in Mcintyre vs. Ohio (514 US 334) notes that the existence of a generalized right to anonymity has been rejected in Lewis Publishing Co. v. Morgan, 229 US 288 (1913).
In the absence of any specific right to anonymity, the deleterious effects of anonymity on other legitimate societal interests must therefore be clinically dissected. It is a truism that the benefits of anonymity as a legitimate expression are increasingly outweighed by the harms it causes. Cyber-harassment, bullying, crime, intellectual property infringement and cyber-hate are some of the monsters that anonymity has turned into.
Cyber mobs, always on the lookout for unsuspecting victims, proliferated ad nauseam. According to the FBI’s Internet Crime Report 2021, a record 8,47,376 cybercrime complaints were reported to the FBI in 2020. Cybercrime in India increased from 3,377 cases in 2012 to 50,035 recorded cases in 2020. The research shows that the anonymity “individuation effect” which results in less self-control and a greater propensity for antisocial discourse.
The recent 2021 Information Technology Rules (Guidelines for Intermediaries and Digital Media Code of Ethics) and their amendments do not address this challenge of anonymity. It obliges social media platforms to make reasonable efforts to prevent them from hosting harmful content. During the consideration of the Personal Data Protection Bill by a Joint Committee of Parliament, I argued for mandatory verification of all social media accounts. It was an important part of my dissent that compelled me to reject the bill in its entirety. The bill was later withdrawn by the government.
The monetization of Blue Ticks as set up by Elon Musk will not be enough. Social media platforms must provide mandatory verification and traceability of every active user on their platform. There is no right to anonymity.