Persephone Bridgman Baker looks at the social media giant’s policy which has users in a roar.

The deadline is fast approaching. By 31 October, more than 70 global human rights organizations representing ‘women, human rights activists, indigenous, religious and ethnic minority communities, LGBTQ people and internet users’ expect a public statement from Facebook, remedying its controversial ‘real name’ policy. The so-called ‘Nameless Coalition’, comprising influential groups including the American Civil Liberties Union and Human Rights Watch, has labelled the policy ‘culturally biased and technically flawed’, criticizing its lack of equal treatment and protection for users.

This public furore is as old as the policy itself. In 2007, the BBC reported that certain names were being rejected by Facebook’s algorithm at the time, in the platform’s efforts to prohibit profanity in the names of users. Facebook originated as a ‘real world’ networking platform: overtaking contemporaneous sites such as MySpace or Bebo; its success attributed to its connection to users’ offline identity. But the algorithm left users such as Rowena Gay, unable to sign up to the social network.

And the anger has been relentlessly high profile. In 2011, Salman Rushdie won a ‘battle’ with Facebook over the prohibition on use of his middle name; the name with which he gained worldwide renown. On receiving Rushdie’s identity documents, Facebook had deactivated his account, only agreeing to reactivate it if he used his ‘real’ first name, Ahmed.

Remind me what I agreed to?

‘Facebook is a community where people use their authentic identities. We require people to provide the name they use in real life: that way, you always know who you’re connecting with.’

– Facebook Help Centre, ‘What names are allowed on Facebook?’

Mark Zuckerberg recently wrote the following: ‘There is some confusion about what our policy actually is. “Real name” does not mean your legal name. Your real name is whatever you go by and what your friends call you. If your friends all call you by a nickname and you want to use that name on Facebook, you should be able to do that.’

Unlike the early days, Facebook no longer uses an algorithm to detect violators of the policy. Profiles are only deactivated pending proof of identity when an individual is ‘flagged’ by another user for flouting the policy. Facebook relies upon flagging to apply numerous policies: graphic content, nudity, hate speech, or harassment are not policed by algorithms, but by individual users who ‘flag’ such content.

Protect or neglect?

Facebook has stood by its reasoning that the policy helps to keep people safe. The platform asserts that people are much less likely to try to act abusively toward other members of the community when using real names. Zuckerberg has cited the domestic violence survivor, able to identify and block the violent ex-partner, safe in the knowledge that he cannot create fake profiles to harass her.

However, the policy has been criticized by exactly these users: domestic violence survivors and members of the LBGT community say that the rule discriminates against their (assumed) identity and can even put them at risk of physical harm. The #MyNameIs campaign saw political dissidents, sex workers, medical professionals, Native Americans, Asians and survivors of domestic and sexual violence protest at Facebook headquarters earlier this year, campaigning against the policy.

Groups of ‘trolls’ deliberately organize Facebook ‘raids’, where the reporting function is used to silence political dissents, and shut down the accounts of journalists, activists, and anyone else who they oppose. A group of drag performers recently kicked off the site would appear to have been victims of a coordinated attack aimed at removing them from Facebook, a form of harassment which the ‘real name’ policy itself strives to prevent. For this, Facebook issued a public apology.

Play our game, play by our rules

Is there a legal right to anonymity or pseudonymity online? In Europe, Article 8 of the European Convention on Human Rights (ECHR) protects private and family life, interpreted to include a right to an identity. Whilst the ECHR provides an enforceable remedy where national law fails to provide adequate protection, this has not yet been engaged in the discussion of whether rights to anonymity and pseudonymity exist online. Article 8 is a qualified right; public interest factors such as national security, public safety or the prevention of disorder or crime and protection of the rights and freedoms of others can all justify an intrusion into an individual’s Article 8 rights.

In Germany, an order has been issued against Facebook for violation of the Federal Telemedia Act and the Act on Identity Cards and Electronic Identification, prohibiting the blocking of an account for pseudonymous usage. Under the order, Facebook must also stop unilaterally renaming user accounts, and demanding digital copies of official photo identification. The Hamburg Commissioner for Data Protection and Freedom of Information Press Release stated: ‘anyone who stands on our pitch also has to play our game.’

What (or who) next?

Platforms such as Instagram, Twitter and now Google+ allow for the use of pseudonyms, while recent contenders like Ello were designed to be pseudonymous. The unauthorized modification of the pseudonym to a ‘real name’ and the German decision demonstrate the relevance of the Data Protection Act in protecting your personal data. An increase in data protection claims may increase if Facebook stands by its ‘real name’ policy in a week’s time.

With online intermediaries facing increasing pressure to assist with online enforcement from intellectual property to defamation, commentators and judges are forecasting the end of anonymity online. Perhaps Facebook has long been ahead of the (name) game.

Persephone Bridgman Baker is an Associate at Carter-Ruck, which specializes in media law.