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
Date Written: August 1, 2015
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: Suggested Citation