Regulatory Challenges for Anonymity on the Internet in Brazil

Introduction: Anonymity and its Challenges

The possibility of creating anonymous profiles – that is, without identity verification - has always been part of the digital reality. Although it can optimistically strengthen freedom of expression, it also opens space for unlawful practices and hate speech in poorly monitored spaces, where the sense of impunity derived from anonymity intensifies and encourages such behavior.

According to data from the National Observatory for Human Rights (ObservaDH), more than 293,000 reports of hate crimes on the internet were recorded between 2017 and 2022. These figures show that the digital space has currently become the main stage for discursive violence, and it is clear that anonymization contributes to this scenario.

Brazilian Regulatory Landscape

Given this reality, the regulation of digital anonymity has become a central topic in the Brazilian public debate. Bill No. 2.630/2020 (the “Fake News Bill”), still pending before the Chamber of Deputies, seeks to regulate digital platforms, demanding greater transparency and moderation of content that violates human rights. At the same time, since the beginning of 2025, the National Telecommunications Agency (Anatel) has advocated stricter regulation, supporting Bill No. 4.691/2024, which establishes parameters for digital anonymity in Brazil and even provides for its express prohibition. According to the agency's president, the lack of clear rules has created an environment of low legal accountability, in disagreement with Article 5, item IV, of the Federal Constitution, which guarantees freedom of expression, but expressly prohibits anonymity.

Article 5, item IV of the Federal Constitution: The expression of thought is free, anonymity being prohibited.

However, this interpretation is controversial. Many argue that Article 5, item IV should not be interpreted in an absolute way, as doing so would risk undermining the very right to freedom of expression – already a right with blurred boundaries. From this perspective, the provision should be understood as a mechanism to safeguard the right of reply and compensation for material, moral, or image damages, rather than as an absolute prohibition of anonymous expression.

Accordingly, it is reasonable to admit that expressive anonymity – when not used as a shield for illicit acts but rather as a means of enhancing legitimate free expression – may be legitimate and compatible with the Constitution.

Judicial Interpretations and Accountability Mechanisms

The Federal Supreme Court has recognized the need for a systematic interpretation of Article 5, item IV. Justice Alexandre de Moraes, in ruling on Appeal No. 10.391/DF, stated that freedom of expression “is constitutionally enshrined and guided by the binomial of freedom and responsibility, meaning that the exercise of this right cannot serve as a genuine protective shield for the commission of illicit activities” and that “once the exercise of freedom of expression is criminally distorted, the Federal Constitution and legislation authorize civil and criminal repressive measures, whether precautionary or definitive.”

Reference: Appeal No. 10.391/DF, Rapporteur: Justice Alexandre de Moraes, Full Bench, Federal Supreme Court (STF). Judgment Date: November 14, 2022.

There arises a need to create a regulatory framework capable of reconciling anonymous freedom of expression with effective accountability mechanisms. The Brazilian Civil Rights Framework for the Internet (Law No. 12.965/2014) sought to address this issue by imposing on service providers the duty to retain connection and access logs and to enable judicial identification of users in cases involving unlawful conduct, without suppressing free expression (Articles 10, §1, 13, §5, and 15, §§1 and 3). At the same time, Article 19 established that internet application providers could only be held liable for third-party content if they failed to remove it following a court order.

This measure, however, proved insufficient to ensure the effective protection of fundamental rights in the digital environment. For this reason, in June 2025, the Federal Supreme Court declared Article 19 partially unconstitutional, ruling that platforms may be held civilly liable even without a judicial order in cases involving anti-democratic content, terrorism, hate speech, and similar categories. In practice, providers must now implement mandatory self-regulation systems, user-accessible reporting channels, and maintain a legal representative in Brazil with full powers to respond to judicial and administrative proceedings.

Challenges in Global Jurisdiction and "Architecture of Invisibility"

Nevertheless, state action remains unable to reach certain areas, leaving fundamental rights vulnerable to attacks perpetrated under the veil of anonymity. This occurs, for example, on platforms hosted in foreign jurisdictions without headquarters in Brazil – beyond the reach of national legislation – or on services deliberately designed to hinder user identification, as is common in certain forums and ephemeral communities.

Such platforms often display technical features that defy any form of state oversight, including offshore server hosting, nonexistent or temporary log retention, and constant domain migration. This “architecture of invisibility” fosters absolute anonymity and a sense of impunity, encouraging the migration of illegal content to environments where legal enforcement becomes practically impossible.

Conclusion: Evolving Regulatory Needs

Therefore, the debate surrounding anonymity and freedom of expression on the internet is far from over. Yet it is clear that, given the global structure of the internet, oversight and accountability cannot rely solely on fixed or national regulations. The role of regulatory law extends beyond restricting anonymity: it must modernize its governance tools to meet new digital needs.

Sources:

Source 1: https://www.gov.br/mdh/pt-br/assuntos/noticias/2024/janeiro/incitacao-a-violencia-contra-a-vida-na-internet-lidera-violacoes-de-direitos-humanos-com-mais-de-76-mil-casos-em-cinco-anos-aponta-observadh. Accessed on: October 9, 2025.

Source 3: https://www.camara.leg.br/noticias/1147910-PRESIDENTE-DA-ANATEL-DEFENDE-PROJETO-DE-LEI-ALTERNATIVO-PARA-REGULAR-REDES-SOCIAIS. Accessed on: 09 Oct. 2025.

Source 5: https://noticias.stf.jus.br/postsnoticias/stf-define-parametros-para-responsabilizacao-de-plataformas-por-conteudos-de-terceiros/. Accessed on: 09 Oct. 2025.