Who Should Be Liable for Online Anonymous Defamation?

The advent of Web 2.0 technologies and applications has enabled average people—who were previously mere consumers of online content—to publish their own content on various websites, such as blogs, consumer-evaluation platforms (such as Amazon, eBay, and TripAdvisor), news websites (through reader comments), social networking services (such as Facebook, Twitter, and LinkedIn), media-sharing websites (such as Instagram and YouTube), and collaborative-writing projects (such as Wikipedia). Some of these user contributions may be defamatory, and one of the most complex and intriguing legal questions in this context is: Who should be liable for defamatory statements made online by anonymous (or pseudonymous) users? This Essay critically evaluates the answers given in various Western jurisdictions and argues that economic analysis supports a revolutionary liability regime, which we call “residual indirect liability.”1 Our 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 content provider—the platform that enables the defamatory statement. Such an action may require modification of substantive law—the recognition of some sort of indirect liability.2 The second component is the ability (or inability) to bring an action against the speaker— the anonymous user. Such an action does not require modification