Online Anonymity—The Achilles’-Heel of the Brazilian Marco Civil da Internet

Abstract

AbstractThis article highlights the problem of interpreting the Brazilian constitutional provision that prohibits online anonymity, and views it as in conflict with many provisions of the Marco Civil da Internet (Law no.12.965/14) regarding protection of private life, confidentiality of communication, and freedom of speech. It draws on the reasoning of judges in cases related to the permissibility of mobile applications for anonymous messages. The reasoning was either in favor of an absolute privilege to free speech, including anonymous speech, disregarding its challenges for dignity-related interests, or focused on the literal interpretation of the provision, favoring full disclosure of the speaker in all circumstances to ensure liability in case of violation. This article also discusses the jurisprudence of the European Court of Human Rights where anonymity is encouraged and, at the same time, dignitarian interests are diligently protected through a complex balancing exercise. It further explores the theoretical importance of anonymity being a value connected to the umbrella of privacy rights. The empirical evidence from Pakistan shows that anonymity has a great instrumental value that protects people from threats to their lives if their speech or actions oppose the prevailing societal ethos. The lack of conclusive research-findings connecting speech abuses with anonymity as well as the modern challenges to anonymity in the online sphere are explored, with the conclusion that the case for blanket prohibition of anonymity—as in the Brazilian constitution—is not very strong.