Who Should Be Liable for Online Anonymous Defamation?

University of Chicago Law Review Dialogue, Vol. 82, pp. 162-176, 2015

15 Pages Posted: 10 Oct 2015  

Ronen Perry

University of Haifa - Faculty of Law

Tal Zarsky

University of Haifa - Faculty of Law

Date Written: August 1, 2015

Abstract

The paper discusses the question of liability for online anonymous defamation. Its main theoretical contribution lies in recognizing that the legal response to online anonymous defamation should be viewed and analyzed as a combination of two components. The first is the ability (or inability) to bring an action against the platform enabling the defamatory statement, which we call “the content provider.” Such an action may require modification of substantive law, namely recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the anonymous user, whom we call “the speaker.” Such an action does not require modification of substantive defamation law, but entails adaptation of procedural law, namely establishing a de-anonymization process. Because this framework provides two potential defendants, and each can be either liable or non-liable, there seem to be four possible liability regimes: (1) neither the speaker nor the content provider is liable; (2) only the speaker is liable (exclusive direct liability); (3) only the content provider is liable (exclusive indirect liability); and (4) both may be liable. To our knowledge, the first option does not exist in any jurisdiction, and for a good reason. The Essay thus rejects the other three (adopted in the US, Israel, and the EU respectively), and advocates an outside-the-box solution — the principle of “residual indirect liability.”

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

Suggested Citation

Perry, Ronen and Zarsky, Tal, Who Should Be Liable for Online Anonymous Defamation? (August 1, 2015). University of Chicago Law Review Dialogue, Vol. 82, pp. 162-176, 2015. Available at SSRN: https://ssrn.com/abstract=2671399

Ronen Perry (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

HOME PAGE: http://weblaw.haifa.ac.il/en/faculty/perry/

Tal Zarsky

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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