Over recent decades, the scope of the specific rights derived from the general right to freedom of speech has been steadily increasing. Many argue, for example, that the freedom of the press is not itself a separate human right, but one derived from the right to free speech. In Europe it is now beyond dispute that the media have the right to keep their journalists’ sources secret, and this is guaranteed by separate statutory provisions in most States. According to certain interpretations, the right to anonymity is just another specific right flowing from the freedom of speech, but it can be interpreted as an independent right as well. The right to anonymity ensures that the speaker has the right to be anonymous and the speaker (or the person knowing the identity of the speaker) can only be obliged to disclose his/her identity in exceptional cases, such as when a crime has been committed.
Professor Barendt examines these issues in his new book. The book attempts to present the problem in full detail, including a historic overview of the practice and social perception of anonymity, whilst also addressing most recent legal issues arising in the course of Internet usage. The author, just as in his previous books (Freedom of Speech (OUP 2005); Academic Freedom and the Law (Hart, 2010)), remains objective and provides a comprehensive picture of the conflicting arguments, though not failing to take an unequivocal stand for or against the different views presented.
Chapter 1 of the book gives a thorough overview of the theoretical cornerstones of the issues to be discussed in later chapters. Chapter 2 examines the individual forms of anonymous speech, including their historic development. The latter chapter also looks at the anonymity of the authors of literary works and articles published in the press, then of political, religious and philosophical pamphlets and, in more modern times, of art and graffiti works, and also the question of anonymity of peer reviews.
Chapter 3 focuses on the relation between anonymity and freedom of speech. The fundamental question here is whether anonymity should be considered as an enforceable right or a freedom that can be exercised by the speaker. The book exhaustively enumerates all the arguments substantiating the different points of view. Protection of anonymity is just as much connected to the protection of privacy as it is to the freedom of speech. It serves the free, unrestricted expression of opinion, protected from the threat of detrimental consequences, just as much as the untroubled privacy of the speaker. Professor Barendt calls these the virtues of anonymity, as opposed to its vices, which are that anonymous speech can easily be used to deceive and the lack of fear of the consequences can induce the speaker to lie. If anonymity is viewed as a right, the above arguments should be granted priority, whilst if it is viewed only as a freedom, we are forced to balance the arguments for and against.
When the limits of the freedom of speech must be defined, European thinking tends to prioritise the interests of the audience of the speech. Fundamental differences in the treatment of the freedom of speech in the laws of European countries and of the United States can be identified as well. Whereas anonymity is usually not an independent, constitutionally protected right in Europe but only a mere option, in the United States the right to anonymity can be enforced, as evidenced by the landmark McIntyre v Ohio Elections Commission case (514 US 334 [1995]).
The American arguments in favour of the constitutional protection of anonymity are similar to those used to substantiate the uniquely wide protection granted to freedom of speech. These arguments include the fear of the tyranny of the majority—and thus the enhanced protection of minority opinions—as well as concerns and reluctance over regulating any kind of content. (If the name of the author is viewed as part of the text itself then it is ‘content’ and its enforced disclosure qualifies as interference with the content.)
The European approach cares more about the interests of the audience of the speech. Though Professor Barendt's arguments are primarily grounded in the legal regulations and jurisprudence of the United Kingdom, and the examples used have a characteristically British relevance, his arguments are nevertheless valid in a more general framework, on a pan-European level as well, because the freedom of speech laws of individual European States apply similar solutions for judging anonymity. Supporting the ‘truth’ of the published speech, the ability to evaluate precisely the well-foundedness of an opinion and the avoidance of deception all aim to serve the interests of the audience. According to this approach, one can get closer to the ‘truth’ if the speaker does not hide behind anonymity; the audience can better assess the well-foundedness of the opinion if they know who the speaker was, and the speaker will be less inclined to deceive the audience if they know they could later be held liable.
Chapter 4 of the book focuses on the rules of British law regulating the anonymous expression of opinion, and also outlines the historic development of this right, touching specifically upon the issue of whistle-blowing as well.
Chapter 5 is dedicated to the analysis of a several-decades-old media law problem, the protection of journalists’ sources. Although within Europe there is a broad consensus that anonymous informants are to be protected, it is even so worth raising the question—as the author does—of the extent to which this protection serves the interest of media credibility. When can the media be held liable for inappropriate handling of sources? And in our current technological environment, who can claim this right for themselves anyway? The traditional notion of the ‘media’ seems to be undergoing a transformation amidst the spread of new Internet services and forums and, parallel to this, the previous rights-holder, the ‘journalist’, cannot be so clearer defined or identifed as in the past. However, if the rights holder cannot be identified, how can one guarantee the right itself? If everyone is guaranteed this right then publicity itself will be seriously impaired by mixing authentic and unfounded information together inseparably.
Chapter 6 deals with the issue of anonymity on the Internet, a topic that is regularly discussed these days. It is characteristic of Internet communication in general that the ‘traditional’ issues related to freedom of speech are presented in new guises or in a magnified manner with the consequence that the continuing validity of regulatory approaches developed in the pre-Internet era is questioned. The power of the legal doctrines developed in the offline world seem to weaken in connection with the restriction of Internet content. We have similar problems with anonymity as well: on the Internet, anonymity can be maintained much more easily, meaning that the author is much harder to identify; what is more, many more people are able to express themselves fairly spontaneously on the Internet, whether using their proper names or anonymously. The much more democratic nature of the Internet as compared to previous forms of media, the nearly completely free and unrestricted access, and as its inevitable result, the immense number of violations committed by exercising free speech and the difficulties of identification may all lead one to conclude that no legal action should be taken against anonymous violations at all. However, this technologically inflicted difficulty does not provide, in itself, sufficient grounds for loosening the limits of free speech without proper theoretical foundations. Neither Professor Barendt, nor the currently applied European legal approach, endorses this direction. This is why, for example, Internet intermediaries can be held liable for the content posted by third parties that cannot be identified by the aggrieved party; see for example the Delfi v Estonia case (App No 64569/09, judgment of 16 June 2015) regarding the content provider's liability for anonymous comments. Perhaps the most important point in this decision was that the European Court of Human Rights acknowledged the potential liability of the website operator. This point was reinforced later by the judgment passed following the closing of the manuscript of Barendt's book in the MTE and Index.hu Zrt. v Hungary case (App No 22947/13, judgment of 2 February 2016).
The concluding Chapter of the book discusses the issues related to secret ballot and election financing, as special types of opinions. Whereas the secrecy of the vote cast at an election is self-evident, the mandatory disclosure of the financial support given to the candidates is nevertheless accepted. This is accepted even by the US Supreme Court, in the interests of democracy, so that voters can be aware of who, or which interest group supports which candidate, and thereby they can make a more well-informed decision in the polling booth (at least that's the idea behind the forced disclosure).
Professor Barendt has once again presented us with the kind of book that we have become accustomed to receive from him during his long career: this new book also deals with the fundamental questions of freedom of speech, provides a thorough comparative legal analysis, considers all important arguments carefully and takes a stand regarding the solutions he deems appropriate, but still remains sensitive to the opposing points of view as well. The author is an advocate of freedom of speech, more specifically, the kind of freedom of speech which serves the interests of democratic society and which also cares for the interests of the audience of the speech and, as such, is destined for eternal balancing.
