Empirical Approaches to Intermediary Liability

This chapter considers what empirical evidence may contribute to the debates around online intermediary liability. What do we need to know in order to frame the liability of intermediaries and, a fortiori, what does the relationship between theory and empirics imply for the wider issue of platform regulation? This chapter evaluates the performance of so-called intermediary liability safe harbours, which have been operating for almost two decades in multiple jurisdictions. The chapter also tackles the problem of transparency of algorithmic decision-making in the ‘black box society’ and how that affects users. In doing so, this chapter reviews the body of empirical studies on copyright intermediary liability during the twenty-year period from 1998 to 2018, drawing on the Copyright Evidence Wiki, an open-access repository of findings related to copyright’s effects. Based on the survey of this body of research, the chapter identifies and discusses five key sub-fields of empirical inquiry pursued so far: the volume of takedown requests; the accuracy of notices; the potential for over-enforcement or abuse; transparency of the takedown process; and the costs of enforcement borne by different parties. Finally, the chapter identifies some of the gaps and limitations in this existing body of scholarship, and offers a number of recommendations for future research.