ARTICLE 19: New decree severely limits right to anonymity online

ARTICLE 19 is concerned by the Belarusian government’s newly adopted decree, which severely limits Internet users’ right to anonymity online. Since 1 December 2018 Internet users in Belarus must prove their identity before they can make online posts.

Website owners are obliged to create systems for users to identify themselves and sign up to a user agreement on their websites. This agreement includes a warning that users do not have the right to post any information prohibited by Belarusian law. Having accepted the agreement, users must activate their account. The decree recommends the use of SMS activation through linking to their phone number and entering an activation code sent via SMS. SIM cards in Belarus can only be purchased with legal identification such as a passport or ID card. The decree also allows website owners to provide other identification methods including through social networks or via email. However, if a user decided to use this type of activation and their social networks account proved to be fake, the website owner is obliged to break the agreement and suspend the user’s account.

The new regulation also makes provisions regarding collection and storage of user’s personal data. Owners of websites or domains are obliged to store data on servers hosted in Belarus. The owners of domains must store user data to provide  “at the request of the investigative authorities, prosecutors and investigators, bodies of the State Control Committee, the Ministry of Information, tax authorities and courts”. This requirement existed before, but the new regulation added the Ministry of Information to the list of bodies that may acquire data.

The amendments obliging users to identify themselves online and that their data be stored on Belarusian servers are both violations of international law and are of considerable concern for users’ safety and freedom of expression. “Protection of anonymity is vital to protecting both the right to freedom of expression and the right to privacy”, said David Diaz-Jogeix, Director of Programmes at ARTICLE 19. Anonymity allows individuals to express themselves without fear of reprisal, and is especially important in countries where freedom of expression is heavily censored. It can lead to marginalised groups self-censoring, including LGBTI people, and silencing of dissent in society.

The decree was adopted as part of broader amendments to the law “On mass media” on 14 June 2018 by the House of Representatives of the national Assembly of the Republic of Belarus. The amendments to the country’s media law have been criticised by international institutions and civil society. On 19 April 2018 the European Parliament approved a resolution urging the Belarusian authorities to “immediately and unconditionally” abandon the proposed bill, saying that they would “threaten freedom of expression”.

The UN Special Rapporteur on Belarus Miklos Haraszti also criticised the bill, saying the “amendments to the media law deprive Internet of anonymity, demand registration and close the last public space for free expression.”

In May 2015, David Kaye,  UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression released a groundbreaking report on online anonymity and encryption. The report states that attempts by governments to gain backdoor access to people’s communications or intentionally weaken encryption standards are violations of international law. It highlights that anonymous speech is vital for human rights defenders, journalists, and protestors. The Special Rapporteur recommends that draft laws and policies providing for restrictions to anonymity should be subject to public comment and only be adopted following a regular – rather than fast-track – legislative process. He also emphasised that strong procedural and judicial safeguards should be applied to guarantee the right to due process of any individual whose use of encryption or anonymity is subject to restriction.

Any restriction to anonymity should comply with the three-part test under Article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR), namely that it should:

• Be prescribed by the law: restrictions have to be precise and clearly stipulated in accordance with the principle of the rule of law;
• Pursue a legitimate aim, namely respect for the rights or reputations of others, and the protection of national security or public order, public health or morals;
• Be necessary and proportionate to aims pursued. “Necessary” means that there must be a “pressing social need” for the interference; that the reasons given by the state to justify the interference must be “relevant and sufficient” and that the state must demonstrate that the interference is proportionate to the aim pursued.

ARTICLE 19 is a British human rights organization with a specific mandate and focus on the defense and promotion of freedom of expression and freedom of information worldwide founded in 1987. The organization takes its name from Article 19 of the Universal Declaration of Human Rights, which states:

“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers."