Virtues and Perils of Anonymity: Should Intermediaries Bear the Burden?

Abstract

On 10 October 2013, the Chamber of the European Court of Human Rights (ECtHR) handed down a judgment (Delfi v. Estonia) condoning the practice under Estonian law of holding a news portal liable, under certain circumstances, for defamatory comments of its users. Amongst the considerations that led the Court to find no violation of freedom of expression in this particular case were, above all, the inadequacy of the automatic screening system adopted by the website and the possibility for users to post their comments anonymously (i.e. without need for prior registration via email), which in the Court’s view rendered ineffective the protection conferred to the injured party via direct legal action against the authors of the comments. Drawing on the implications of this (not yet final) ruling, this paper discusses a few questions that the tension between the risk of wrongful use of information and the right to anonymity generates for the development of Internet communication, and examines the role that intermediary liability legislation can play to manage this tension.

Keywords: Internet intermediary liability, anonymity on the Internet, defamation, technological rights adjudication

JEL Classification: K130, K420