El papel del geobloqueo en el contexto jurídico de Internet
| Autor | Marketa Trimble |
| Páginas | 45-58 |
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Submission date: November 2016
Accepted date: December 2016
Published in: December 2016
ARTICLE
The role of geoblocking in
the Internet legal landscape*
Marketa Trimble
Samuel S. Lionel Professor of Intellectual Property Law
William S. Boyd School of Law, University of Nevada, Las Vegas
Abstract
Geoblocking has been presented both as an evil perpetrated against the Internet and as the savior of
content on the Internet. The European Commission regards geoblocking as undesirable and aims to
eliminate geoblocking within the European Union to the extent possible. Although the Commission’s 2015
proposed cross-border portability regulation and its 2016 proposed anti-geoblocking regulation would
not eliminate geoblocking entirely, the two regulations would significantly limit the instances in which
geoblocking would be legal. Content creators, such as motion picture studios, take a different position
on geoblocking: they see geoblocking as a helpful means to partition markets, maintain distribution
schedules, and secure financing based on territorially-defined distribution. For content providers such as
small online radio stations, geoblocking may be the only way to conduct business if these stations rely on
affordable, but territorially-limited, licenses. This article reviews the recent legal developments concerning
geoblocking and considers whether the future of the Internet can and should include geoblocking. Recent
developments suggest that geoblocking is receiving a greater role in the legal context: legislators, courts,
and regulators are considering geoblocking as an effective and necessary means of territorially limiting
on the Internet the effects of their laws, judgments, and decisions. Because there are no uniform global
laws that would govern activities on the Internet without respect to where those activities occur in the
world, some form of geoblocking might be needed to address specific circumstances.
Keywords
geolocation, geoblocking, Internet, territoriality, cross-border portability
Topic
geoblocking
Marketa Trimble
* This article was originally published in the congress proceedings at the 12th International Conference on Internet,
Law and Politics: Building a European Digital Space (Barcelona, July 2016).
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El papel del geobloqueo en el contexto jurídico de Internet
Resumen
El geobloqueo, o bloqueo geográfico en internet, ha sido presentado al mismo tiempo como un mal per-
petrado contra la red y como la salvación para los contenidos de internet. La Comisión Europea considera
el geobloqueo una herramienta indeseable y pretende eliminarlo, en la medida de lo posible, dentro de
la Unión Europea. Si bien la normativa sobre portabilidad transfronteriza propuesta por la Comisión en
2015 y su propuesta de normativa de 2016 contra el geobloqueo no supondrían su eliminación completa,
lo cierto es que ambas limitarían notablemente los casos en los que el geobloqueo se consideraría legal.
Algunos creadores de contenidos, como los estudios cinematográficos, adoptan una posición distinta
respecto a este fenómeno: consideran que el geobloqueo es un método útil para dividir los mercados,
mantener sus calendarios de distribución y garantizar la financiación basándose en una distribución
definida territorialmente. Para proveedores de contenidos, como las pequeñas emisoras de radio en
línea, el geobloqueo podría ser la única forma de hacer negocio si esas emisoras dependen de obtener
licencias asequibles, pero también limitadas territorialmente. Este artículo revisa las novedades jurídicas
más recientes en relación con el geobloqueo y se plantea si el futuro de internet puede, o debe, incluir
este tipo de bloqueo. Según los últimos acontecimientos, parece que el geobloqueo está adquiriendo un
papel cada vez más relevante en el contexto legal: legisladores, tribunales y reguladores lo consideran un
medio efectivo y necesario para limitar territorialmente en internet los efectos de sus leyes, sentencias y
decisiones. Puesto que no existe una legislación global y uniforme que regule las actividades en internet
que no tenga en cuenta en qué lugar del mundo se produzcan esas actividades, podría ser necesario
cierto tipo de bloqueo territorial para abordar determinadas circunstancias.
Palabras clave
geolocalización, geobloqueo, internet, territorialidad, portabilidad transfronteriza
Tema
geobloqueo
1. Introduction
“Geoblocking” has become a common term in the everyday
vocabulary of the Internet; it is no longer a term known
only to technical experts.
1
In early 2011, few members of
non-technical audiences knew the term “geoblocking,” and
of those who knew the term, fewer still were familiar with
the tools that were available to circumvent geoblocking.
2
Just five years later it is now rare to meet anyone – certainly
anyone in the younger age groups – who has not encountered
geoblocking, and many more users are aware of the ways
in which it can be circumvented.
With the greater awareness of geoblocking, public opinion
is developing about geoblocking, its functions, and its
desirability. The fact that users seem to use virtual
private networks (“VPNs”) and other means to circumvent
geoblo cking with inc reasing freque ncy suggests tha t
1. In this article I use “geoblocking” to refer to any means of preventing access to a user to content on the Internet based on the user’s location.
The means might not prevent access absolutely; tools exist through which users may circumvent geoblocking, and such circumvention
decreases the effectiveness of geoblocking.
The term “geoblocking” may be distinguished from the term “geolocation,” which refers to a means of determining the location of a user.
While geoblocking requires geolocation as a step in the process of blocking access by a user who is connecting from a certain location,
not all geolocation is necessarily followed by blocking access to the user based on the user’s location.
I use “Internet” in a general sense, without referring to a particular network protocol.
2. M. Trimble (2012, pp. 567-657).
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3, See, for example, L. B. Baker and Y. Adegoke (2012); A. Gell (2014).
4. A Digital Single Market Strategy for Europe – Analysis and Evidence (2015).; Proposal for a Regulation of the European Parliament and of
the Council on ensuring the cross-border portability of online content services in the internal market (2015); Proposal for a Regulation of
the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers’ nationality,
place of residence or place of establishment within the internal market and amending Regulation (2016).
5. “International Public Opinion Says Government Should Not Limit Internet Access” (2009); Summary of Responses to the European
Commission’s 2015 Public Consultation on “Geo-blocking and Ot her Geographically-Based Restrictions When Shopping and Accessing
Information in the EU” (2015, p. 10).
6. On the risk of re-identification and the potential discriminative power of location data see, for example, C. Riederer et al. (2015).
7. Convention on the High Seas (1958).
the opinion is negative.
3
Public opinion is reflected in
the actions of at least one policy maker: the European
Commission’s recent anti-geoblocking initiatives,
4
discus sed in thi s article, evidence th e Commissi on’s
opposition to geoblocking. However, any vilification of
geoblocking would be misguided because such a position
lessens the opportunity for a comprehensive and objective
assessment of the role of geoblocking; an assessment of
geoblocking must include a consideration of important
roles that geoblocking can and should play in the Internet
legal landscape. This article argues that geoblocking has
served such important roles and should be maintained in
some circumstances.
2. Uses of geoblocking and
the Internet legal landscape
Internet users may have different expectations of the
Internet, depending on their experiences with the medium,
but one expectation seems to be constant across time and
across generations: users seem to expect the Internet to
provide unrestricted access to information.
5
Different users
may have different expectations of what “unrestricted”
access should mean; to some users “unrestricted access”
might mean “free” in the sense of unpaid, to other users
“unrestricted access” might mean available to everyone
and available everywhere, even if available occasionally
only for a fee. Because the Internet was territorially
unrestricted in its beginnings, it is not surprising that
users would expect geographically unrestricted access
to all information. This sentiment does not seem to
have changed, even though users are aware of website
geolocation practices; website geolocation capabilities
allow websites to adjust content, including advertising and
search engine results, to viewer location with increasing
accuracy. The tracking of a user’s location that such
localization practices involve causes privacy concerns for
some users,
6
but user concerns over geolocation alone do
not seem to generate the public outrage that geoblocking
seems to create.
Notwithstanding any opposition to geoblocking that may
exist among Internet users, geoblocking plays important
roles in the Internet legal landscape. This section discusses
how geoblocking affects the landscape: the first subsection
looks at the landscape without the use of geoblocking
and discusses the rationales and means for the territorial
delimitation of the Internet in the absence of geoblocking.
The second and third subsections review the uses of
geoblocking from their beginnings in the private sector to
their current position in the regulation and enforcement
of law.
2.1. Regulation and jurisdiction in the absence
of geoblocking
Whether and how borders would be drawn on the Internet
was not clear at the beginnings of the medium. Without
a clear notion of how far their jurisdiction might actually
extend, some jurisdictions have approached the regulation
of online activities, such as the licensing of online gambling,
by employing an approach analogous to dealing with vessels
on the high seas. This approach is based on the assumption
that if ships may register in only one country to sail anywhere
in the world, companies should be able to register in a single
jurisdiction to offer online gambling on the Internet to users
anywhere in the world. The jurisdictions using this model
seem to assume that, as on the high seas where “every state
[…] has the right to sail ships under its flag,”7 on the Internet
every jurisdiction has the right to have companies that are
registered or licensed in that jurisdiction operate anywhere
and everywhere on the Internet. The high seas analogy is
helpful to content and service providers because it means
that they may subject themselves to a single jurisdiction, of
their choosing, and conduct business anywhere in the world
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8. Id., Article 6(1). The localization of acts on the Internet based on the place of a server would also allow content and service providers to
select a governing jurisdiction. For a discussion of localization in the place of a server, see note 24 on p. 267 in M. Trimble (2016a). See
also M. Trimble (2016b).
9. For an analysis of Internet jurisdiction issues from the perspective of the law of the high seas, see W. G. Jiménez and A. R. Lodder (2015).
10. Convention on the High Seas, supra note 7, Article 2.
11. Id., Article 1. Convention on the Territorial Sea and the Contiguous Zone (1958, Article 1).
12. “[Vint] Cerf’s central mistake, a mistake typically made about the Internet, is to believe that there was something necessary or unchangeable
about the Net’s original architecture,” which “did not contemplate national boundaries.” J. Goldsmith and T. Wu (2006).
13. The capability of a country to regulate activity and enforce decisions globally (i.e. including outside its national borders) depends on the
ability of the country to enforce the decisions of its courts and agencies on its own (when the subject of the regulation and/or enforcement
is located in the country or has assets there), or on its ability to rely on other countries’ assistance in enforcing its decisions.
14. M. Geist (2003).
15. See, for example, Yahoo! Inc. v. LICRA and UEJF, 433 F.3d 1199 (9th Cir. 2006), cert. denied.
16. M. Trimble (2016a).
under the laws of that jurisdiction (using the “country of
the flag” analogy), and only that jurisdiction.
8
The high seas analogy would be even more apt and useful
for understanding the relationships between countries’
sovereignty and their jurisdiction on the Internet if the analogy
were extended to its logical limit s.
9
Two other principles of the
law of the high seas are that “no state may validly purport to
subject any part of [the high seas] to its sovereignty,”
10
and
that within the so-called “territorial sea,” the jurisdiction of the
state of the flag is concurrent with the jurisdiction of the state
of the territorial sea as soon as a ship sails into, and while it
remains in, the territoria l sea.
11
These principles accommodate
countries’ jurisdictions – a principle that is fully acceptable
on the sea but unacceptable on the Internet to those who
advocate unlimited country jurisdiction on the Internet.
12
From the Internet industry’s perspective, the preference to be
subject to a single jurisdiction and its laws is understandable;
the industry would prefer that 1) an entity be subject to a
single jurisdiction, and 2) an entity have the option to select
the jurisdiction that will regulate its activities, without regard
to the entity’s place of incorporation, principal place of
business, or the geographical scope of its activities. However,
countries are unlikely to relinquish their regulation of conduct
in their territory in favor of a foreign jurisdiction selected by a
company. Countries may be willing to recognize the rules and
decisions of other countries in some areas of law and for some
issues, but in other areas and for other issues they demand
full sovereignty and will regulate the areas on their own
terms (although they sometimes agree to be constrained to
a certain degree by international or regional harmonization).
A country’s desire to maintain full sovereignty in certain
areas of law should have a mirror image: the country’s
respect for the sovereignty of other countries. This
respect requires that the country regulate areas of
law under its own sovereignty and enforce decisions in
these areas in a territorially-limited manner. Geoblocking
enables a country to limit the effects of the exercise of
its jurisdiction.
What happens if there is no territorial limit on the effects
of a country’s jurisdiction? A country typically does not
relinquish its power merely because it faces circumstances
under which it cannot limit the territorial effects of its
power; rather, it regulates and enforces its decisions to
the extent that it can while ignoring territorial limits.
13
As Geist pointed out, ignoring the territorial limits that
constrain the effects of jurisdiction causes “a shift from
a borderless network to borderless law.”
14
Such disregard,
at a minimum, sparks uncertainty about the effects of
territorially-unlimited decisions when agencies or parties
to a dispute seek to have such decisions enforced outside
the country whose court or agency issued the decision.
15
When foreign countries deny assistance in enforcing
such territorially-unlimited decisions, the countries that
issued the decisions search for other solutions, directing
enforcement measures at intermediaries such as Internet
service providers and payment processors; however, these
solutions provide no direct remedy and generate various
problems of their own.
16
The ability to use geoblocking to delimit jurisdiction and
enforce decisions within territorial boundaries makes
geoblocking appealing to those agencies, courts, and
legislators who are conscious of the need for restraint as
regards the exercise of jurisdiction on the Internet. Of course,
before geoblocking existed, and even today whenever
geoblocking is not utilized, other techniques have been and
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still are used to limit the territorial scope of jurisdiction; for
some purposes, the degree of interactivity of a website
17
or
signs of targeting, such as the particular top level domain
and the language of the website, are used to determine
whether a website will be subject to the jurisdiction of a
particular country. However, since geoblocking is now
adequately developed to serve various purposes, agencies,
courts, and legislators have begun to consider geoblocking
as a potentially effective means to delimit their actions on
the Internet territorially.
2.2. Adoption of geoblocking by
the private sector
Governmental interest in geoblocking was preceded by the
utilization of geoblocking in the private sector. The private
sector began to use geoblocking because it serves the
purposes of enhancing security and partitioning markets.
Geoblocking improves security on the Internet by preventing
unauthorized access by blocking login and/or transaction
attempts from outside a location in which an authorized user
is expected to be located. Geoblocking enhances market
partitioning on the Internet by enabling content and service
providers to limit access by users to information about
certain goods, services, and/or prices, thereby enabling the
providers to discriminate among different markets and offer
different goods and services in various markets, for different
prices, with different technical standards and warranties,
and at different times.
Geoblocking has also been incorporated into contractual
obligations: when content and service providers enter into
contracts that require them to limit access to content to
users connecting from a particular territory, the providers
are sometimes required by the contracts to utilize
geoblocking tools to fulfill the access limitations. In some
instances the reasons for such contractually-mandated
territorial limitations are economic (market partitioning),
but in other instances the requirements stem from territorial
limitations on the licensor’s rights and/or obligations to
which the licensor is subject. A typical example would be
a scenario in which a licensor holds copyright to a work in
only some countries; if the licensor licenses the copyrighted
content, the license must be territorially-limited, mirroring
– or at least not extending – the territorial limits of the
licensor’s rights.
When they are fulfilling their contractual obligations, content
and service providers do not stop a t using geoblocking
tools; they also commonly insert provisions in their users’
terms of service to contractually support the employment
of geoblocking. These provisions may include an obligation
for users to access content only from a certain geographical
area and/or a prohibition against users’ circumventing
geoblocking. For example, Sat.1, a German television
station, in its terms of service says that its users may
not “alter, evade or otherwise disregard” its geoblocking
tools.
18
If a user does not comply with the provider’s terms
of service, the user is in violation of the agreement and
could potentially face consequences associated with such a
breach of contract. However, geoblocking is a more effective
means of delineating the territorial imprint for user access
to content; it functions instantly and creates no further
enforcement costs for a provider, namely the legal and
reputational costs that a provider would incur if it enforced
its rights against users.
2.3. The use of geoblocking for regulation
and in the enforcement of laws
At the same time that geoblocking has become a part of
private ordering, regulators and courts have also begun
to explore geoblocking, not only as one of the options
available to territorially delineate the scope of their
decisions, but potentially as the only viable, sufficiently
reliable option to define their decisions territorially. The
area of gambling law provides instructive examples in
which regulators and courts require the use of geoblocking
to prevent users in their jurisdiction from accessing
content that is prohibited in the jurisdiction; these
regulators and courts also turn to geoblocking to allow
users in their jurisdiction to access content that is legal in
the jurisdiction, and to prevent users from outside their
jurisdiction from accessing the same content that is not
legal in those other jurisdictions.
For example, the Italian gambling regulator has required
that online gambling websites geoblock users connecting
17. Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa. 1997).
18. Nutzungsbedingunen für die Nutzung des Videoportals von Sat.1, § 4.1(g). [Accessed: 30/10/2016] < http://www.sat1.de/service/
nutzungsbedingungen/nutzungsbedingungen-fuer-die-nutzung-des-videoportals-von-sat-1>.
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from Italy to prevent the users from accessing certain
content.
19
In the United States, a Kentuc ky state court
ordered an online gambling website to employ geoblocking
to prevent access to the webs ite by users conn ecting to
the Internet from the State of Kentucky.
20
Conversely,
gambling regulators in some jurisdictions require online
gambling operators licensed in their jurisdictions to employ
geoblocking to allow access to the operators’ websites only
to users connecting from their jurisdictions and from such
other jurisdictions where the operators are also licensed.
This requirement stems from a general obligation imposed
on gambling operators in these jurisdictions to abide not
only by the laws of the licensing jurisdiction but also by
the laws of any other jurisdiction where the operators hold
licenses.
21
Geoblocking enables compliance with territorially-defined
laws and decisions in other contexts as well. In a case in
the United States, a question arose whether sufficiently
effective geoblocking is to be deemed a standard practice,
meaning whether one must employ geoblocking in order not
to infringe the rights of another arising under U.S. copyright
law.
22
The determination was important to the plaintiff
because if geoblocking is considered a standard practice,
the plaintiff could potentially be awarded higher damages
for a violation of copyright (as opposed to contractual
damages for violation of contract). But the determination
would also be important generally: if geoblocking is held
to be a standard practice, compliance with U.S. copyright
laws on the Internet would always require the use of
geoblocking. The court eventually decided the case as a
copyright infringement case, finding that the defendant
willfully infringed copyright; however, the court did not
answer whether geoblocking would have been required
absent the contractual obligation to geoblock that existed
in this case.
23
The need to comply with territorially-limited rules of privacy
and personal data protection also generates interest in
geoblocking. For example, i n response to p ressure from
European privacy regulators, Google announced in early
March 2016 that it would begin to utilize geoblocking in
an effort to comply with requests from users who wish to
exercise their “right to be forgotten.”
24
The right enables an
Internet user to request that a search engine remove from
its search any results it generates if those results contain
information about the user that the user does not wish to
appear in the results in some circumstances, particularly if
the information is inaccurate, or “inadequate, irrelevant or
excessive in relation to the purposes of the processing.”
25
Commenting on the utilization of geoblocking to comply
with user requests under the “right to be forgotten,” Peter
Fleischer, Google’s Global Privacy Counsel, explained that
Google will “use geolocation signals (like IP addresses) to
restrict access to the delisted URLon all Google Search
domains, including google.com, when accessed from the
country of the person requesting the removal.”
26
Although Google users who are opposed to territorial
restrictions on access to information might consider it
unfortunate that Google has agreed to geoblock users
connecting from the jurisdiction for which the “right to
be forgotten” request is filed, this solution is in fact more
advantageous to Google users than the alternative. The
alternative would be that Google take down the search
results worldwide and disable access to the links through
the Google search even for users accessing Google from
outside the jurisdiction for which the request was made.
Limiting compliance by taking the links down only from the
Google website with the top level domain of the particular
jurisdiction (Google.es for Spain, for example) would clearly
be insufficient to achieve compliance with the request if
users in the jurisdiction could still easily access the content
19. “IP Geolocation Can Ensure Compliance with UIGEA Regulations”. Neustar. [Accessed: 30/10/16]. <https://www.neustar.biz/resources/
whitepapers/ip-geolocation-ensuring-compliance-with-online-gambling-regulations>.
20. Jazette Enterprises Ltd. v. Commonwealth of Kentucky, Court of Appeals of Kentucky, 2014 WL 689044, February 21st, 2014, p. 2.
21. See, for example, N.R.S. 463.720 (Nevada). Alderney eGambling Regulations 2009, as amended in 2010 and 2011, Sections 21(1)(a) and (h),
22(b)(i), 41(1)(a), 42(1)(b)(i), 65(1)(a), 66(1)(a) and (h), 67(b)(i), 85(1)(a), 102(1)(a), 122(a).
22. Spanski Enterprises, Inc. v. Telewizja Polska, S.A., D.D.C., 1:12-cv-00957-TSC.
23. Spanski Enterprises, Inc. v. Telewizja Polska, S.A.,D.D.C., 1:12-cv-00957-TSC, Memorandum Opinion Setting Forth Findings of Fact and
Conclusions of Law, December 2nd, 2016.
24. Google Spain SL v. Agencia Española de Protección de Datos (AEPD), ECJ, C-131/12, May 13th, 2014.
25. Id., par. 92 and the ruling of the Court.
26. P. Fleischer (2014). Emphasis omitted.
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(which they could) by simply switching to a website with
a different top level domain (Google.com, for example)
27
Geoblocking only the users that connect to the Internet from
Spain (in this example) means that Internet users from other
jurisdictions may continue to access full Internet search
results.
3. Opposition to geoblocking
Geoblocking has its opponents, whose objections to
geoblocking fall into two categories: objections concerning
geoblocking per se, and objections concerning the
underlying reasons for geoblocking. Critics who oppose
the underlying reasons for geoblocking often frame their
objections as objections to geoblocking per se and question
geoblocking’s effectiveness in delimiting borders on the
Internet, instead of addressing their true objections, which
are directed at the underlying reasons for geoblocking.
Because the two categories of objections are often
presented together, it is useful to separate them and
consider them seriatim.
3.1. Objections to geoblocking per se
Geoblocking itself is criticized by those who believe that the
original architecture of the network should remain intact as
to its indifference to national borders. As Goldsmith and Wu
noted, such critics have viewed “[t]he bordered Internet [as]
a dreadful development that is antithetical to the Internet’s
‘true’ purposes and undermines the Internet’s promise.”
28
For these critics, replicating national borders or creating
new borders on the Internet, including through geoblocking,
is unacceptable.
Geoblocking is also criticized for allowing spillover that
might or might not be negligible. In addition to the fact that it
suffers from potential technical flaws that may allow for such
spillover, geoblocking is targeted by acts of circumvention
from users.29 Although geoblocking is constantly improving,
so too are the various tools being developed to circumvent
geoblocking. As with other technological measures, it is
unreasonable to expect flawless reliability from geoblocking;
laws are frequently employed to support the use of
technological measures that are imperfect. If the measures
operated perfectly, there would be no need for legal rules
to support the functioning of the measures.
30
It is uncertain if, and if so how, the law currently supports
the operation of geoblocking.
31
The uncertainty regarding
the legality of geolocation circumvention is best exemplified
by the changes in the ways that circumvention tool
providers advertise their tools. Tool providers previously
touted the function of their tools in evading geolocation
and circumventing geoblocking for users who wanted to
access copyright-protected content that was restricted to
certain users based on their location; now, however, they
refrain in their advertising from referring specifically to
copyright-protected content. For example, in 2011 My Expat
Network encouraged users to use its services to “watch
American TV online whilst overseas,” noting that by “using
[My Expat Network’s] US based servers, [users] will … be
able to access US based content such as American TV
catchup services, sites blocked where you are and other
US only websites.”
32
Today, however (as of May 7th, 2016),
My Expat Network encourages users in nebulous terms
to use its tool to “watch the online content [the users]
love from wherever [they] are” and “[g]et [their] home
country Internet throughout [their] home.”
33
Providers of
geoblocking evasion tools also tend to emphasize the use
of their tools for purposes other than avoiding geoblocking,
which are primarily the purposes of anonymization and the
protection of privacy.
Other examples illustrate the uncertainty about the legal
status of the circumvention of geoblocking. The fact that a
27. For a Canadian case in which Google was unsuccessful in attempting to justify its compliance with an injunction solely through a website
version for a particular jurisdiction, see Equustek Solutions Inc. v. Google Inc., Court of Appeal for British Columbia, [2014] BCCA 295,
July 23, 2014; Equustek Solutions Inc. v. Google Inc., [2015] BCCA 265, June 11, 2015. An appeal of the 2015 decision was pending before
the Supreme Court of Canada as of October 30th, 2016.
28. Goldsmith and Wu, supra note 12, p. 150.
29. Trimble, supra note 2.
30. Neil Stanley Higgs v. The Queen, [2008] EWCA (Crim) 1324.
31. P. Leung (2016).. See also Trimble (2012).
32. My Expat Network. November 1st, 2011. [Accessed: 30-October-2016] .my-expat-network.com/>.
33. My Expat Network. March 13th, 2016. [Accessed: 30-October-2016]
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34. J. Kirk (2015).
35. Intellectual Property Arrangements, Draft Report (2016).
36. S. Tully (2014, p. 193).
dispute between content providers and the provider of the
circumvention tool Global Mode in New Zealand resulted
in a settlement
34
could signal uncertainty about the legal
status of the circumvention of geoblocking. In a recent draft
report, the Australian Productivity Commission urges the
Government of Australia to amend the copyright statute to
clarify that circumvention of geoblocking is not in violation
of Australian copyright law and thus “prevent the future
possibility that rights holders seek to use ambiguity in
the Australian copyright system to prevent consumers’
circumvention of geoblocks.”
35
While geoblocking suffers criticism for its less-than-perfect
reliability and the uncertainty regarding the legal protection
it might enjoy, it suffers further criticism on a third front:
implement ing geoblocking is not witho ut co sts. When
service and content providers are required to employ
geoblocking, they expend capital that they could otherwise
use in areas arguably more beneficial to their businesses
and their customers. The strength of this argument will
weaken, of course, if and when the costs of geoblocking
tools drop in price. Additionally, if geoblocking becomes
standard practice in the industry or legally mandated (as
it has in onlin e gambling regulation, mentioned earlier),
its costs become regular costs of doing business that are
incurred by all businesses, similar to the costs of domain
name registration or website hosting.
Geoblocking also frequently attracts criticism as a barrier
to free speech and the right to “receive and impart
information and ideas… regardless of frontiers” – the right
that is included, for example, in Article 11(1) of the Charter
of Fundamental Rights of the European Union. To the extent
that geoblocking is used in a circumscribed manner and is
not in violation of constitutional and human rights laws, such
criticism is unwarranted; constitutional and human rights
laws typically do permit some limitations on speech.
36
The
problem arises when, as is the case when any technological
measures are employed, the employment of geoblocking
leads or might lead to inadvertent limitations on speech,
and when such limitations, if they occur, are in violation
of the law. Limitations placed on speech are problematic,
particularly when the limitations are implemented by an
intermediary, without the authorization of – or even against
the will of – the speaker, and the limitations are contrary
to the legal obligations of the intermediary. Limitations on
speech imposed by the speaker him or herself should pose
no legal issues as long as no affirmative legal duty exists
for the speaker to impart the speech him or herself, and
impart the speech without territorial limitation.
3.2. Objections concerning the underlying
reasons for geoblocking
Other objections to geoblocking, even if framed as objections
to the tools themselves and the effects of the tools, in fact
relate to the purposes for which geoblocking is utilized.
For example, users complain about being geoblocked when
they try to access copyrighted content; in such instances,
geoblocking is typically used to comply with territorially-
limited rights and/or licenses. Therefore, rather than
targeting geoblocking in their complaints, users should
direct their complaints at the differences among national
copyright laws and the differences in rules of copyright
ownership, subject matter protectability, and/or exceptions
and limitations to copyright protection. Or, if a territorial
limitation arises from licensing practices associated with
market partitioning, users should criticize the practice
of market partitioning. In either set of circumstances
the debate should concentrate on the reasons for which
geoblocking is employed rather than on the employment
of geoblocking itself.
If objections to geoblocking stem from the underlying
reasons for geoblocking but the debate still focuses on
geoblocking itself, the course of the debate may reveal
the critics’ desire to find less effective (and therefore less
restrictive) means of delineating borders on the Internet
and bypass any debate about the underlying reasons. At
present, although it is not a perfect means, geoblocking is
the most effective means of limiting access to content on
the Internet on a territorial basis. All of the alternatives
to geoblocking are less effective; the alternatives, such as
relying on providers’ targeting (using indicators such as
a particu lar language or top-level domain) and/or users’
self-reporting (relying on users to indicate their location),
usually result in substantial territorial spillover and arguably
substantially lower compliance and enforcement.
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37. For a discussion of acceptable cross-border spillover, see, for example, M. Trimble (2014).
38. A Digital Single Market Strategy for Europe, supra note 4, pp. 4, 6, and 21-25.
39. Article 3(3). European Commission, COM (2016) 289 final, May 25th, 2016.
40. European Commission, COM (2015) 627 final, December 9, 2015.
41. Proposal for a Regulation, supra note 4, p. 2.
42. Id., Article 3, pp. 16-17. “Portability” is defined as a characteristic that “means that subscribers can effectively access and use the online
content service in the Member State of residence without being limited to a specific location.” Id., Article 2(f), p. 16.
43. Impact Assessment (2015). See also Proposal for a Regulation, supra note 4, p. 8.
Choosing a less effective means to achieve compliance and
enforcement with territorial restrictions is equivalent to a
policy choice to under-enforce the territorial restrictions.
Such a policy choice might be substantiated by the
interests of som e stakeholders; however, to substantiate
this choice the stakeholder interests should be legitimate
and significant enough to shape national policies. Fur ther,
it might be possible to pursue other avenues to promote
the interests rather than deliberately building highly
permeable borders; while some cross-border spillover
has always been accepted, a large spillover resulting from
highly permeable borders defeats the existence of the
borders.
37
4. The EU anti-geoblocking
campaign
A regulation of cross-border spillover that could affect the
effectiveness of geoblocking is the first action in the European
Commission’s campaig n against “unjustified geob locking.”38
When the Commission launched the campaign in 2015, the
first reports indicated that the future of geoblocking was
unclear; however, the resulting proposals for two regulations
were much milder than the initial Commission document
had suggested.
After the Commission had examined the various reasons for
which service and content providers employ geoblocking, it
introduced in December 2015 a relatively modest proposal
to address one effect of geoblocking – the limitation on
access that users experience when they are temporarily
present in another country. In May 2016, the Commission
introduced its second proposal, which was a substantially
more ambitious regulation that would eliminate geoblocking
in most i nstances. However, even this second proposal
includes a significant limitation: it prohibits geoblocking
generally, unless “the blocking […] is necessary in order to
ensure compliance with a legal requirement in Union law
or in the laws of Member States in accordance with Union
law.”39 While the second proposal would combat geoblocking
that is employed for purely economic reasons, such as
price differentiation, the proposal would not eliminate
geoblocking that is employed to comply with national laws.
This section reviews the Commission’s first proposal – the
proposal for the regulation on cross-border portability – and
discusses the potential effects of the proposed regulation.
The proposal exemplifies the problem of mixing the two
types of objections to geoblocking that were discussed in
section 3 – objections to geoblocking per se and objections
to the underlying reasons for geoblocking. In this proposal,
the Commission seeks to set limits on the legal evasion
of geoblocking, rather than addressing the underlying
objection to geoblocking – the territorial nature of copyright
law.
4.1. The Proposal for the EU Regulation
on Cross-Border Portability
The proposed Regulation on ensuring cross-border
portability of online content services in the internal market40
responds to the substantial “[c]onsumer demand for the
cross-border portability of online content services.”
41
By
“cross-border portability” the Commission means the ability
of a user to access content that is accessible to the user in
his or her EU member state of residence when the user is
temporarily present in another EU member state.
42
Annex 7 of the Impact Assessment that accompanies the
Proposal provides a glimpse of the kinds of services that the
Commission wants the cross-border portability to apply to:
they are, for example, subscription services such as iTunes,
Sky Now, and CanalPlay that place territorial restrictions
on access to the content that they provide.
43
The fact that
there might be contractual obligations that stand in the
way of cross-border portability is not a roadblock for the
Proposal, which in its Article 5 would make any contractual
provisions unenforceable if they contravene the cross-border
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portability requirement. The Proposal would not distinguish
among such contractual provisions based on the reasons
for the existence of the provisions. For example, it would
be irrelevant that a contractual provision was based on a
licensor’s territorially-limited scope of rights; if the provision
contravened the cross-border portability requirement, it
would be unenforceable.
The Proposal legislates an acceptable level of cross-border
spillover.44 At present, when a user is temporarily in another
country the user must use a geoblocking circumvention
tool if the user wants to access content that is otherwise
available to the user in his or her country of residence (and
which he or she might be paying for). This is problematic
because of the uncertainty regarding the legal status
of the use of circumvention tools to access any blocked
content. Content and service providers realize that such
spillover exists and some try to minimize it by blocking
the circumvention tools to the extent that the providers
are able. Some providers might decide not to contest
the circumvention; for some providers spillover might be
negligible, and for other providers spillover might even be
welcome if they benefit from the increased website traffic.
The proposed Regulation would define an acceptable
spillover45 and mandate that content and service providers
allow that level of spillover – access to content by a user
who is a resident of one EU member state when that user
is temporarily present in another EU member state and is
accessing content that is available in the user’s EU member
state of residence.
46
4.2. The effects of the cross-border portability
proposal
One problem of the Proposal is that, in order to ensure
that only users who are residents of EU member states are
granted access, and granted access only from EU member
states where the users are temporarily present, the users’
movement must be tracked and their identity authenticated
when the u sers access content. Unless p roviders are
expected to rely on users’ own declarations of their status,
providers will have to implement geolocation, location
tracking, and authentication mechanisms to verify that
particular users are eligible to enjoy portability at a given
moment. Whether such greater surveillance of users by
content and service providers inures to the benefit of society
as a whole is open to debate.
47
Without such mechanisms,
however, spillover could easily increase to a level that would
defeat any geoblocking that providers might employ.
By addressing geoblocking itself rather than the reasons
for which geoblocking is employed, the Proposal seems to
be treating the pain rather than the underlying disease.
Although the Commission Communication that was issued
on the same day as the Regulation Proposal suggests that
further legislative proposals should be directed at the
causes of the “pain”, i.e. the reasons that underlie the use of
geoblocking,48 the order in which the Commission produces
its proposals seems to be logically reversed, with the
Regulation Proposal preceding other legislative initiatives
that should target the reasons for which geoblocking is
44 One indication that the Proposal is in fact about acceptable spillover is this statement from the Proposal: “For the licensing of copyright
and related rights, this means that the relevant copyright acts, which occur when the service is provided to consumers on a basis of
cross-border portability, are deemed to occur solely in the Member State of residence.” Proposal for a Regulation, supra note 4, p. 8.
The Proposal thus uses a conflict-of-laws concept – localization of the acts – to prevent liability in the EU member state where the user is
temporarily present for copyright infringements and violations of licenses.
45. The magnitude of the resulting spillover would depend on the definition of the term “temporarily present” for the purposes of the Regulation,
and also on the reliability of tools employed to ensure geolocation, location tracking, and authentication of users who are intended to
benefit from cross-border portability under the Regulation.
46. The supposition that the Commission understands the effects of cross-border portability as an acceptable spillover is suppor ted by the
fact that the Commission does not expect that content and service providers will have to re-negotiate their contracts in order to comply
with the Regulation on cross-border portability. Proposal for a Regulation, supra note 4, p. 6.
47. In the Explanatory Memorandum to the proposal for the Regulation, the Commission acknowledges that “[s]ervice providers would benefit
from the mechanism establishing the localisation of the service for purposes of portability and be able to better respond to their customers’
needs.” Proposal for a Regulation, supra note 4, p. 6.
48. Towards A Modern, More European Copyright Framework (2015). See also A Digital Single Market Strategy for Europe, supra note 4, p. 4.
49. “Removing the obstacles to cross-border portability is a first significant step that addresses a specific obstacle to cross-border access to
content which is important for consumers.” Proposal for a Regulation, supra note 4, p. 2.
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being employed.
49
Of course, removing geoblocking first
may be an avenue for the European Commission to push
forward certain policy agendas that EU member countries
have resisted so far – for example, a unification of copyright
law in the European Union.
50
5. Geoblocking serving
positive ends
Geoblocking should not be summarily rejected as an evil on
the Internet; not all purposes for which geoblocking is used
are contrary to law or otherwise worth eliminating. Although
geoblocking prevents unrestricted access to information on
the Internet, it also serves important ends that should not
be overlooked when considering the future of geoblocking
on the Internet. Geoblocking promotes diversity of content
on the Internet and serves other positive ends.
5.1. Diversity of content on the Internet
That geoblocking contributes to the diversity of content
on the Internet seems counterintuitive. Although
geoblocking will limit the variety of content accessible
to a user in a certain l ocation to t he content access ible
from that location, from a global perspective the diversity
of content accessible to users around the world will be
enhanced. For example, when a search engine provider
makes certain search results inaccessible in Spain to
comply with a request under “the right to be forgotten”
(mentioned in subsection 2.3. above), a user located in
Spain will not be able to find or access the search results.
However, worldwide diversity will be increased because
geoblocking allows the search engine to comply with “the
right to be forgotten” in Spain while the full search results
are maintained for users connecting to the Internet from
outside Spain. Absent geoblocking, the search engine
provider might choose to, or be forced to, remove the full
search results globally.
Geoblocking arguably contributes to the diversity of
conten t o n t he Internet in yet a nother way: conte nt
licensing can be priced differently, depending on
the market, the size of the market, and the other
characteristics of the market. Geoblocking allows licensors
to grant, and licensees to comply with, territorially-limited
licenses that are less costly than global licenses. Without
geoblocking, content creators would be pressed to license
on a worldwide basis at prices that would most certainly
exclude smaller service providers from the market. The
absence of geoblocking could therefore unwittingly lead
to a large consolidation in the market and diminished
competition among service providers, both locally and
globally. Whether large industry consolidations would be
harmful for society should be a topic of discussion before
geoblocking is eliminated.
5.2. Other reasons for geoblocking
Supporters and critics of geoblocking debate the advantages
and disadvantages of geoblocking according to their own
motivations; some critics will even argue against diversity
of content on the Internet in favor of what they perceive as
advantages of uniform content, including, for example, the
promotion of global unity among societies and enhancement
of cross-border trade. Promoters and detractors of market
partitioning will also promote the positions that serve their
own interests; numerous authors have discussed why market
partitioning might be beneficial to consumers, and therefore
the use of geoblocking, even for market partitioning, should
not be summarily rejected without considering the economic
implications of this use in some circumstances.
Territorial partitioning of the Internet is inevitable as long
as countries have strong national public policies that
shape at least some areas of their laws. Even within the
European Union, where great strides have been made to
unify or harmonize national laws among the individual EU
member states, or achieve a single EU market through
mutual recognition, many differences in laws persist that
not even the single EU market can eliminate. The difference
in the rules for online sales of over-the-counter medicines
(as opposed to prescription medicines) is a lesson about
when and why it matters to countries whether borders on
the Internet are permeable or not.
51
Online gambling and
other sensitive areas of regulation evidence countries’
50. For now, the European Commission has declared that “[t]he general objective is to increase the level of harmonisation.” Towards A Modern
More European Copyright Framework, supra note 48, p. 8. See also id., p. 12. For an earlier mention of a possible future EU action on uniform
copyright law, see Online Services, Including E-commerce, in the Single Market (2012).
51. Deutscher Apothekerverband v. 0800 Doc Morris, ECJ, C-322/01, December 11th, 2003.
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strong policy stances for which geoblocking on the Internet
offers a workable modus operandi.
6. Conclusions
Two conclusions may be drawn from this article. First,
geoblocking should not be summarily rejected without
considering the beneficial roles that it plays or may play in
the Internet legal landscape. Geoblocking is a tool that serves
multiple purposes, not all of which are undesirable and should
be discarded. Only after we assess the purposes of geoblocking
and how geoblocking supports the purposes should we
discuss any elimination of geoblocking. In a 2012 proposal for
a “digital passport” that would allow users to access content
available outside of the jurisdiction in which they are located
(to “cybert ravel”)
52
the suggestion was not that all content
should necessarily be available everywhere; in fact, the digital
passport idea was guided by the notion that some cybertravel
might not be permissible and that a digital passport would
allow cybertravel only to the extent permitted by law.
The second conclusion to be drawn from this article is
that a weakening of geoblocking will open a back door to
legal harmonization or unification that countries and other
stakeholders might or might not find desirable. Of course,
geoblocking is not the only tool that can achieve a territorial
partitioning of the Internet; arguably, however, it is the most
effective tool that exists today. Replacing geoblocking with
a less effective means, or opening holes in geoblocks with
potentially ineffective cross-border portability rules, would
concede a greater content spillove r that could de facto mean
the end of the territorial partitioning of the Internet. Some
critics may argue that eliminating or replacing geoblocking
is the proper course of action – it is a course that, if taken,
would force the industry and countries to find common
business and/or legal solutions in those areas of law where
countries disagree on a uniform approach. Apart from
whether the unification of laws and business practices is
currently realistic or not, we should ask ourselves whether
we actually want a territorially unpartitioned Internet, given
the effects that the removal of borders on the Internet would
have on the legal landscape.
52. See supra note 2.
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Recommended citation
TRIMBLE, Marketa (2016). “The role of geoblocking in the Internet legal landscape”. IDP. Revista de
Internet, Derecho y Política. No. 23, pp. 45-58. UOC [Accessed: dd/mm/yy]
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About the author
Marketa Trimble
marketa.trimble@unlv.edu
Samuel S. Lionel Professor of Intellectual Property Law
William S. Boyd School of Law, University of Nevada, Las Vegas
William S. Boyd School of Law
4505 S. Maryland Parkway
Las Vegas, NV 89154
