Access intervenes at ECtHR for the right to be anonymous online

Download the Access submission to the Court here

Late last week, Access intervened before the Grand Chamber of the European Court of Human Rights, Europe’s highest human rights court, in the case Delfi AS v. Estonia. At stake in the Delfi case are questions of intermediary liability and whether european websites can continue allowing users to post content freely, anonymously, and without government-mandated censorship.

A final ruling in the European Court of Human Rights that affirms Estonia’s position — as previous rulings shockingly have done — could force websites to heavily censor user comments before publication, and put online platforms at risk for allowing unidentified users to post. It is critical that the Grand Chamber, the ECtHR’s appellate court, overturn the lower courts’ previous rulings.

A long path to the Grand Chamber is a popular Estonian news website that allowed anonymous comments. In 2006, some anonymous comments on an article about ice roads and transportation ferries led to the site being sued for defaming a ferry company’s owner. During the ensuing trial, the news site refused to divulge information pertaining to the commenters’ identities. Estonian courts allowed the alleged victim of the defamation to sue Delfi as the publisher of the comments.

Delfi was penalized for hosting the comments even though it took them down on the same day it received the offended party’s request. However, notice-and-takedown – the mechanism called for in the EU E-Commerce Directive (Article 14) – was not good enough – the Estonian Supreme Court argued, finding the company should have instead actively prevented the defamatory comments from being published in the first place. This would require the company, and all other online intermediaries in Europe, to proactively monitor content before it is published, and then play judge, jury, and executioner on its lawfulness. Given the liability online companies would face under such a legal regime, there would be a perverse incentive to censor.

After the Estonian Supreme Court’s decision, Delfi took the government of Estonia to the European Court of Human Rights (ECtHR), alleging violations of its fundamental right to freedom of expression, as provided by Article 10 of the European Convention on Human Rights (ECHR).

The lower chamber of the ECtHR shockingly upheld Estonia’s position and found no violation of the ECHR. Delfi then requested the case be referred to the Court’s Grand Chamber, its highest body. Despite the odds – most applications are rejected  the Grand Chamber accepted the referral.

The Grand Chamber will decide whether sites across Europe can be penalized for allowing anonymous and pseudonymous comments without censoring them prior to publication. This is no minor decision, it will impact human rights and innovation online for years to come.

Access argues for anonymity online

The European Convention on Human Rights (ECHR) secures the rights to privacy and freedom of expression. Access argued in our submission that these rights include the right to anonymity, since the loss of anonymity and pseudonymity in online spaces has a chilling effect on freedom of expression, undermines privacy, and threatens people’s lives and livelihoods.

In our submission, Access demonstrated that the right to anonymous and pseudonymous expression is an historically protected right in international and domestic laws and norms. Access brought to the ECtHR historical examples, which demonstrate the importance of anonymous and pseudonymous expression. Access also cited national and international court decisions, which protect anonymous expression as an essential aspect of the rights to privacy and freedom of expression.

Anonymity and pseudonymity continue to be critical drivers of innovation online.

Access also demonstrated that laws and policies allowing anonymity and pseudonymity online enable innovation and economic growth for web content and service providers. Examples such as Twitter, Reddit, and Weibo demonstrate that some of the most popular sites and services on the internet today have allowed users to conceal their identities. For instance, researchers found a dramatic drop in the number of monthly Weibo posts beginning in March 2012, when the government mandated a real-name policy and restricted rumors of a government coup, forcing the platform to shut down comments for three days.

Allowing pseudonyms increases the quantity and quality of user posts online. Imposing liability for user-generated content can result in higher costs to companies, reduced subscribers, deter investment in the sites, and ultimately harm innovation online.

Real name and mandatory identification policies put users at risk.

In our submission, Access argued that real name policies restrict expression, while neither reducing inflammatory or offensive speech, or increasing the diversity of opinions expressed.

An example from Kenya, illustrates that more speech is preferable to censorship. During recent elections, social media and SMS platforms were studied for calls to violence. It was seen that platforms like Twitter, that facilitate direct conversations on posts – enabling quick and easy ‘counterspeech’ – were more effective at changing opinions and reducing inflammatory posts than more one-sided social platforms. Thus, policymakers should focus on facilitating more speech and counter speech than reducing, censoring, and/or identifying online speech.

Access’ submission will be forwarded to the parties in Delfi AS v. Estonia, who will be given an opportunity to reply to them in their oral pleadings at the public hearing of the case on 9 July 2014.