Al(i)as! No Right to Pseudonymity?

Can social media users request anonymity from
social media companies? A German Data
Protection Office thinks so. (c) Kettemann 2011

Wolfgang Benedek an I have been invited to write a book for the Council of Europe on "Freedom of Expression and the Internet". As we have were finalizing the manuscript I was struck again by the breadth of human rights challenges online. It seems that every day brings new decisions, new directions, new answers (but also new questions). 

In the few days since we've handed in our manuscript, for instance, new developments happened in the French #UnBonJuif case and Microsoft followed Google and Twitter to release its transparency report on law enforcement requests.

Privacy on social networks is valued deeply by some and considered superflouos by others (or at least their carless approach to personal data lets you think that). 

The NY Times reported with regard to Skype that 

"In 4,713 cases last year, Microsoft disclosed administrative details of Skype accounts — like a user’s Skype ID, name, e-mail address and billing information, as well as call detail records if a person subscribed to a Skype service that connects to a telephone number. But Microsoft said it had released no content from Skype transmissions last year. It has said that the peer-to-peer nature of Skype’s Internet conversations means the company does not store and has no access to past conversations."

This leads to the question how we can protect our privacy in social networks. One approach is anonymity or pseudonymity. Social media services providers dislike both, because they make interacting with users (and personalizing ads) more difficult. For them, an identifiable user is a more valuable user.

But Facebook's real name policy als leads to interesting legal questions, especially since the  regional data protection office of the German state of Schleswig-Holstein started an initiative to safeguarding freedom of expression online  

Back in December 2012, the Office ordered Facebook change its real name policy and allow for the use of pseudonyms. 

The Office based its arguments on para. 13 (6) of the German Telemediengesetz (TMG; Telemedia Act) which obliges online service providers 

“to enable the anonymous or pseudonymous use of telecommunications media […], as far as technically possible and reasonable”. (my translation)

According to the Office, the German legislation is compliant with European law and serves to protect “in particular the fundamental right to freedom of expression on the Internet”. 

Though identify theft and abuse of social networks is a problem, the real name obligation does not prevent them effectively. Therefore, the Office concluded, “[t]o ensure the data subjects' rights and data protection law in general, the real name obligation must be immediately abandoned by Facebook”. 

Facebook did not go down without a fight.

Two months after the decisions by the Data Protection Office, on 14 February 2013, the Upper Administrative Court of the German state of Schleswig-Holstein agreed to suspend the ruling of the Office on the grounds that German data protection law was not applicable as the relevant collection of data takes place in Ireland (where Facebook Ltd. is incorporated)

The Office announced that it would appeal against the suspension.

The two decisions raise the larger issue of how international Internet companies should react to different standards in national and regional decisions and legislation. It is important to clarify that certain standards have to be met and that international human rights commitment, and especially commitment to freedom of expression online are respected. It also raises the question how to ensure that an authoritative standard of interpretation of freedom of expression, as developed by the ECtHR, can be translated for the local and regional offices and judiciaries.

As I wrote earlier, human rights-related developments online happen quickly. A great overview is provided by the Internet & Jurisdiction project. Both their annual report 2012 and the  summary of the key trends they see emerging is worth reading.