A victory for online anonymity in South Korea and for freedom of expression globally

Just as temple guards in Seoul, South Korea's
Constitutional Court has acted as a guard to the
rights of Internet users, by upholding anonymitity.
(c) Kettemann 2012. 

As the Korea JoongAng Daily, as well as Jurist, the Verge, WSJ and Heise.de report, South Korea's Constitutional Court has ruled, on 23 August, that the South Korean law on real name use on the Internet is illegal. 

The Constitutional Court  ruled that that is was unconstitutional to ask users, under the terms of a 2007 law, to verify their true identities and use their real names when posting in Internet message boards with more than 100,000 users a day. That would amount to prior restraint and was thus unconstitutional. 

The Court said that "expressions under anonymity or pseudonym allow (people) to voice criticism on majority opinion without giving into external pressure." Though anonymity has negative side effects, "it should be strongly protected for its constitutional value."

The verdict striking down  Article 44 (5) of the Act on Promotion of Information and Communications Network Utilization and Data Protection was unanimous. 

As the   Korea JoongAng Daily reports

"In its ruling, the court said restricting freedom of expression can only be allowed when it has a clear effect on the public interest. “After the system was introduced, there was no meaningful decline in the number of illegal postings,” the ruling said. “Instead, users fled to Internet sites operated from overseas. It also created discrimination against service providers at home and favored those overseas. Taking these circumstances into account, it is hard to say that the system is serving the public interest.”"

Further, the Court identified concerns that the real names of people would be stolen due to security problems of  websites storing that information. 

This is good step, especially for South Koreans. 

As I have written previously, 

"recent reports by the Electronic Frontier Foundation and the Economist show even a democratic country such South Korea has been actively using references to taboo words as tools to curtail freedom of speech. The Economist particularly criticized the "supposedly independent KoreaCommunications Standards Commission [that] has had the remit [since 2008] topromote a “sound and friendly communications environment”.

"Sound and friendly" doesn't bode well for freedom of speech. Andindeed, a recent NYTimes article found that using curse words in South Korea can get you censored quite easily."

As the European Court of Human Rights ruled in Handyside v. UK it is not sound and friendly communicative acts that needprotection, but those that shock, offend and disturb. 

In a similar vein, the German quality daily FAZ recently published a comment by Peter Leppelt entitled "Anonymity online: Don't fear Freedom" in which he argued that the arguments against using real names are more weighty. 

The possibility to be anonymous online leads creativity, culture and development. The Internet, he argues, offers a "great opportunity to allow [...] anarchy and anonymity, use their burgeoningn creativity, but continue to live settled lives".

 

Thinking of a more  human rights-based approach to anonymity, I was reminded of Robert Bodle from the College of Mount St. Joseph who sat with me on a panel at the 2011 GigaNet symposion during the IGF in Nairobi. He wrote and presented an  excellent paper entitled "Upholding online anonymity in Internet governance. Affordances, ethical frameworks, and regulatory practices" in which he argued convincingly that  

"anonymity in networked digital communications is indispensable as an enabler of other inalienable rights, including informational privacy and freedom of expression."

Anonymity is also important for the involvement of all in multistakeholder-based Internet Governance processes. As Bodle concludes,

"The attributes of anonymity, including minimal accountability, disinhibition, and deindividuation, can encourage robust political speech, provide safety from reprisal, permit the freedom to speak freely, and create a strong sense of group identity. Anonymity can serve the multi-stakeholder model of Internet governance well by encouraging the full involvement of all, including marginalized and vulnerable populations, political dissidents, whistleblowers, and other private citizens who wish to participate without surveillance, data retention, repression, or other infringements on personal autonomy, privacy, and freedom of expression."