Liability for Online Anonymous Speech: Comparative and Economic Analyses

Ronen Perry

University of Haifa - Faculty of Law; University of Oxford - Faculty of Law

Tal Zarsky

University of Haifa - Faculty of Law

April 15, 2014

Journal of European Tort Law, Vol. 5, 2014

This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, imposes liability on the content provider.

From an economic perspective, the main problem with exclusively direct liability is the special effort in identifying and pursuing the anonymous speaker. Additional, yet probably less serious, problems are the high likelihood of judgment-proof defendants and high transaction costs which prevent a contractual transfer of the burden to the content provider when it is the cheapest cost avoider. The drawbacks of exclusively indirect liability are the relatively high cost of precautions, the fact that content providers do not capture the full social benefit of their activity, and the asymmetric legal response to errors with respect to ‘defamatoriness.’ Concurrent liability of the speaker and the content provider overcomes the high cost of identifying and pursuing anonymous speakers, and the problem of judgment-proof defendants. It also induces content providers to facilitate identification of anonymous speakers, increasing the likelihood of internalisation by primary wrongdoers. But concurrent liability has potentially conflicting effects on deterrence, and may result in an aggregation of the implementation costs of both direct and indirect liability. The residual indirect liability regime eliminates (or at least reduces significantly) the need for monitoring, and prevents over-deterrence associated with unaccounted benefits and asymmetric response to errors. It also incentivises content providers to reduce the cost of identifying anonymous wrongdoers, and does not raise the characteristic problems of multiple-defendants. This model may raise some difficulties but they seem either insignificant or solvable, making the English model (with some modifications) the most efficient.

Number of Pages in PDF File: 46

Keywords: defamation, tort law, freedom of speech, anonymous speech, privacy, intermediary liability, cyberspace, internet, web 2.0, comparative law, economic analysis

JEL Classification: K00, K13

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Date posted: June 13, 2014 ; Last revised: June 19, 2014

Suggested Citation

Perry, Ronen and Zarsky, Tal, Liability for Online Anonymous Speech: Comparative and Economic Analyses (April 15, 2014). Journal of European Tort Law, Vol. 5, 2014. Available at SSRN: http://ssrn.com/abstract=2448706

Contact Information

Ronen Perry (Contact Author)
University of Haifa - Faculty of Law ( email )
Mount Carmel
Haifa, 31905
HOME PAGE: http://weblaw.haifa.ac.il/en/faculty/perry/
University of Oxford - Faculty of Law ( email )
Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom
Tal Zarsky
University of Haifa - Faculty of Law ( email )
Mount Carmel
Haifa, 31905
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