Volume 11, Issue 2, September 2014

Delineating the Reach of Internet Intermediaries’ Content
Blocking – “ccTLD Blocking”, “Strict Geo-location Blocking” or a “Country Lens
Approach”?

Dan Jerker B. Svantesson*

Cite as: D Svantesson, “Delineating the Reach of Internet Intermediaries’ Content
Blocking – “ccTLD Blocking”, “Strict Geo-location Blocking” or a “Country Lens
Approach”?”, (2014) 11:2 SCRIPTed 153 http://script-ed.org/?p=1539

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DOI: 10.2966/scrip.110214.153

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1. Introduction – what is the problem?

There is an increasingly prominent trend of
legal actions being taken against globally active Internet intermediaries, such
as Google and Facebook. While the details are unique to each such action,
several disputes relate to content held, but not produced, by the relevant
Internet intermediary.[1]
The policy considerations involved in assigning liability, or imposing a duty
to block/remove content on Internet intermediaries in such cases are complex.
As a result of this complexity, we are yet to see a clear international
practice develop. Indeed, the reality seems to be a lack of uniformity, not
only between different countries, but also within many domestic legal systems.

This article discusses the extent to which
Internet intermediaries should be required to block or remove third-party
content, and places emphasis on the geographical limitations that reasonably
may be placed on such blocking/removal. I argue that we need to be extremely careful
in how such a duty is imposed and delineated. Nevertheless, it must no doubt be
accepted that occasions will arise where it is reasonable to ask Internet
intermediaries to remove or block certain content. Yet, even with the
acceptance of this proposition – which ought to be reasonably uncontroversial –
we are still left with the task of delineating the geographical reach of such
blocking/removal. Given the globalised world we live in, not least online, this
is indeed a key question.

In answering this question, we may be
tempted to say that when our courts conclude that certain content is to be
blocked or removed, we want that blocking or removal to be global. However, the
appeal of such a kneejerk reaction will quickly evaporate upon a soberminded
consideration of the real state of things. While many people may prefer
Internet intermediaries to exercise global blocking/removal based upon orders
from the courts of their countries, they may not necessarily wish for Internet
intermediaries to engage in global blocking/removal based on court orders from
all other countries in the world – particularly where such court orders stem
from restrictive, undemocratic laws with an extraterritorial effect. In the
end, such compliance risks leading to Internet intermediaries being forced to
take account only of the most restrictive laws from all the countries in the
world.[2]

To this we may add, a bit simplified, that
the geographical reach of a court’s order is typically limited to the territory
of the country where that court operates. Practical difficulties of giving
court orders extraterritorial reach, combined with notions such as sovereignty,
comity and the duty of non-intervention, suggest that the geographical reach of
court orders typically should be so limited.[3]

Where a globally active Internet
intermediary is subject to a court order requesting the blocking/removal of
certain content in a certain country, the question is how that Internet
intermediary is to delineate the blocking/removal. A global removal would
obviously be the most effective approach. However, up until recently, it has
been relatively consistently recognised by courts that global removal is
problematic and often excessive. Here we can, for example, consider the reasoning
of the Supreme Court of New South Wales (NSWSC) Australia:

An injunction to
restrain defamation in NSW [New South Wales] is designed to ensure compliance
with the laws of NSW, and to protect the rights of plaintiffs, as those rights
are defined by the law of NSW. Such an injunction is not designed to
superimpose the law of NSW relating to defamation on every other state,
territory and country of the world. Yet that would be the effect of an order
restraining publication on the Internet. It is not to be assumed that the law
of defamation in other countries is coextensive with that of NSW, and indeed,
one knows that it is not. It may very well be that according to the law of the
Bahamas, Tazhakistan [sic], or Mongolia, the defendant has an unfettered right
to publish the material. To make an order interfering with such a right would
exceed the proper limits of the use of the injunctive power of this court.[4]

Thus, a global removal of content that is
only unlawful in some countries, but not others, would arguably infringe the
rights of people in those latter countries to access that content. Further,
global blocking in such a situation may be seen as a violation of the creator’s
right to communicate that content in the countries where doing so is lawful.

It is important that we do not overlook
these rights just because there may be a duty not to communicate that content
in some countries. Elsewhere,[5]
I have discussed this in some detail, and it may be useful to repeat part of
that discussion here. One often sees the adherence to the harshest rules as a
proposed solution to the difficulty of variances in legal standards where more
than one standard applies to specific conduct. Such suggestions rely on notions,
such as that expressed by Justice Souter, that: “[n]o conflict exists, […]
‘where a person subject to regulation by two states can comply with the laws of
both.’”[6]

I object to this duties-focused approach.
Essentially what Justice Souter and others are saying is that we should only
focus on the duties imposed by law. If the duties do not conflict, the laws do
not conflict. This is too simplistic a perspective. It completely neglects the
importance of the rights that laws provide. Importantly, the correlative
relationship between rights and duties we may be accustomed to from a domestic
law setting does not necessarily survive when transplanted into a cross-border
environment; that is, rights provided under one country’s legal system may not
necessarily create corresponding duties under other legal systems.

I argue that in assessing whether two (or
more) laws are in conflict we need to take account of both the duties and the
rights those laws provide for. In other words, even where the duties do not
clash, the rights of one country may clash with the duties of another country.

The difference can be illustrated by way of
an example. Imagine that the laws of state A specifically provide for a right
of religious freedom, while the laws of state B specifically impose a duty of
adherence to Norse pagan faith. Where a person, for one reason or another,
finds herself bound to comply with both the laws of state A and those of state
B, there is no conflict in the view of the reasoning put forward by Justice
Souter and others – such a person can comply with the law of both states by
adhering to Norse pagan faith.

In contrast, from the perspective I
advocate here, there is a conflict since the right provided by the law of state
A cannot be freely exercised while at the same time complying with the duty
imposed by the law of state B (except, of course, by those who voluntarily
chose to exercise their right to worship Odin, Thor, Freja etc).

In light of all this, I argue that calls
for compliance with the strictest rules, as a solution to the problem of
conflicting laws, are misguided.

In this context, it is also relevant to
consider the practical implications of the fact that most major Internet
intermediaries are based in the United States. One thing seems beyond
intelligent dispute: the courts that can control Internet intermediaries can to
a great extent control the accessibility of Internet content. This fact alone
taints the issue discussed with interesting geo-political considerations and
agendas. However, concerning ourselves with those considerations and agendas here
is quite simply unmanageable.

In light of the above, the core argument,
from which the discussion below flows, is that where an Internet intermediary
is ordered to block or remove certain Internet content, the default position
must be that ordinarily the blocking/removal should be geographically limited
rather than having a global reach. Global blocking/removal cannot be the
default response to every court order requiring an Internet intermediary to
block/remove certain content in a certain country. We need a more measured and
more sophisticated approach.

One option is to seek to delineate the
reach of the blocking/removal by reference to country code Top-Level Domains
(ccTLDs) – we can call this ccTLD-blocking. For example where a
French court request that Google blocks/removes content in France, Google may
do so in relation to www.google.fr, while the relevant content is unmodified
for the rest of the world.[7]
This paper investigates the suitability of such a structure.

Yet, it is also necessary to look beyond
ccTLD-blocking. After all, technically advanced Internet intermediaries like
Facebook, Yahoo, Google and Twitter have other weapons in their arsenals that
can be used to affect the accessibility of Internet content. Geo-location
technologies may determine an Internet user’s geographical location, for
example, by reference to the user’s IP address. Such technologies can, of
course, be used to delineate the accessibility of Internet content. Indeed,
such technologies can be used in various ways to achieve such a result, and I
will consider both a “strict geo-location blocking” and a more nuanced “country
lens” approach.

First, however, to prepare ground for that
discussion, a few words are appropriate about the role Internet intermediaries
play and why Internet intermediaries are targeted by litigants in the first
place.

 

2. The important role played by
Internet intermediaries

The important role played by Internet
intermediaries, as well as the increasing pressure they are under and the need
for a clearer legal landscape, were all recognised and articulated in a series
of 2010 Organisation for Economic Co-operation and Development (OECD) documents.
One such paper noted that: “[l]imitations of liability for Internet
intermediaries have enabled these entities and the wider Internet economy to
flourish, and facilitated growth and innovation.”[8] And that:
“governments should clarify how existing laws apply to different scenarios and
provide guidance for Internet intermediaries on their legal obligations.”[9]

That same paper also stressed that:

[g]iven the
global nature of the Internet and the cross-border services that Internet
intermediaries often provide, an international convergence of approaches for
the development of policies involving Internet intermediaries was viewed as
essential, to provide effective guidance to the business sector.[10]

Despite efforts such as these, if anything,
it seems that the potential liability of Internet intermediaries, and more
broadly the role such entities ought to play in the Internet ecosystem, is more
perplexing than ever. Yet some things seem to be beyond intelligent dispute.
For example, focusing primarily on ex post blocking/removal:

  • Certain types of content, such as child
    pornography materials, are indefensible, and Internet intermediaries can,
    and do, play an important role in the fight against such content;[11]
  • Intermediaries have existed in various
    forms for a long time, such as news papers, radio and TV broadcasters and
    even libraries. Yet, the role and function of Internet intermediaries is
    so fundamentally different to other types of intermediaries that they must
    be approached with fresh eyes free from the contamination of preconceived
    notions based on comparisons with the roles of other intermediaries; and
  • It does not lie in the interest of
    Internet intermediaries to become arbiters of “good taste” or lawfulness
    of third-party content in a general sense.[12]

In addition, widespread consensus was
reached on the following matters already in the 2010 OECD discussions:

·        
The fact that Internet intermediaries (may)
possess the technical capacity to block/remove content does not, on its own,
justify them being asked to exercise that capacity;[13]

·        
The fact that there are many different types of
Internet intermediaries excludes a one-size-fits-all approach;[14]

·        
There is a correlation between imposing legal
liabilities on Internet intermediaries and how such entities deal with their
users. Such “liabilities can create two effects: i) encourage intermediaries to
restrict speech or engage in self-censorship; or ii) discourage intermediaries
from allowing anonymous use of their services”;[15] and

·        
There is a need to distinguish between requiring
Internet intermediaries to act ex-ante and requiring them to react ex-post.[16]
In fact, a relatively recent United Nations (UN) Human Rights Council Report
concludes that, “[t]o avoid infringing the right to freedom of expression and
the right to privacy of Internet users, the Special Rapporteur recommends
intermediaries to: only implement restrictions to these rights after judicial
intervention.”[17]

Echoing some of the sentiments already
expressed above, the Special Rapporteur in the mentioned UN Report notes that:

[h]olding
intermediaries liable for the content disseminated or created by their users
severely undermines the enjoyment of the right to freedom of opinion and
expression, because it leads to self-protective and over-broad private
censorship, often without transparency and the due process of the law.[18]

Furthermore, the 24 April 2014 NETmundial
Multistakeholder Statement
also recognises the important role played by
Internet intermediaries:

Intermediary
liability limitations should be implemented in a way that respects and promotes
economic growth, innovation, creativity and free flow of information. In this
regard, cooperation among all stakeholders should be encouraged to address and
deter illegal activity, consistent with fair process.[19]

Through this stocktake-like exercise, it is
clear that relatively consistent contours of an internationally recognised
legal framework for Internet intermediaries are discernible. However, I hasten
to add that,
as in the case of many other issues, the UN declarations
and OECD reports do not reflect actual state practice.
They often shine the light onto a desirable path forward rather than onto the
less attractive place we are now. For example, the vast gap between e.g.
European and Asian approaches to Internet intermediary liability clearly show
that the international community is far from reaching a practical compromise on
the issue.

 

3. Why Internet intermediaries are
targeted

Given that they are not the primary party
responsible for the availability of content, one may wonder why Internet
intermediaries are so often targeted instead of the original content providers.
The answer to this question may obviously vary from case to case, but without
stretching the bounds of imagination too far, it is possible to point to four
typical reasons.

First, in many cases, identifying the
uploader of the content in question – i.e. the party primarily responsible for
its presence online – may be difficult. At any rate, it is almost always
considerably easier to identify the provider of the platform on which the
content exists (as in the case of e.g. Facebook and Youtube), or from which it
can be found and accessed (such as various search engines). In addition, even
where an offended party is seeking to take action against the party primarily
responsible for the content, it may require the assistance of the relevant
Internet intermediary regardless in order to identify that party.

Second, and related to the first, even
where the original publisher may be identified, Internet intermediaries may be
targeted where the original publisher is beyond the reach of the court where
the plaintiff has chosen to take action.

Third, one of the great advantages of
digital content is the ease with which it may be copied and re-distributed.
This characteristic that generally is a virtue is also a sin where one is
seeking to ensure the removal of content from the Internet. One leading
commentator goes as far as to argue that “the involvement of intermediaries in
the regulatory process signals the beginning of relatively effective law and
order on the Internet and ultimately its absorption within the ordinary law of
the land.”[20]

Finally, Internet intermediaries will
typically have “deeper pockets” than do those parties who upload content online
(often individuals). This may lead plaintiffs to include the relevant Internet
intermediary in any action they take against the party that uploaded the
content. And it may cause plaintiffs to seek large amounts in the litigation.

 

4. ccTLD-blocking

Country code Top-Level Domains provide a
natural geographical delineation of the Internet. Indeed, the idea that the choice
of ccTLD is of legal significance is well established. For example, in the
combined cases
Pammer v Reederei Karl Schlüter GmbH & KG and Hotel
Alpenhof GesmbH v Oliver Heller
,[21] the Court of Justice of the European Union stated that the “use of
a top-level domain name other than that of the Member State in which the trader
is established, for example ‘.de’, or use of neutral top-level domain names
such as ‘.com’ or ‘.eu’”[22]
amounts to evidence that the trader’s activity is directed to the Member State
of the consumer’s domicile. In the same case, the Advocate General discussed
the matter in detail and states amongst other things that:

the mention of
the internet domain name of a Member State is a clear indication that the
undertaking is directing its activities to the Member State with that domain
name. If the undertaking – such as Internationale Frachtschiffreisen Pfeiffer
in Pammer, for example – sets up a website with the domain name ‘.de’, this
must necessarily mean that it is directing its activities to the German market.[23]

Elsewhere,[24]
I have expressed criticism of some of the reasoning here. In particular, the
Advocate General conclusion that: “[i]f, for example, an undertaking with its
place of establishment in the United Kingdom sets up a website with the domain
name ‘.es’, it is apparent that it is directing its activities in whole or in
part to the Spanish market”[25]
is of course easily refuted by reference to examples of domain names such as
“parti.es” and “famili.es” – domain names that utilise the ccTLD, not for its
connection with a particular country, but for its ability to form part of a
word or phrase.

Similarly, the geographical delineation
provided by ccTLDs is affected by the practice of adopting a ccTLD for its
specific meaning. It is, for example, common to see Swedish websites use the
ccTLD of Niue (.nu) since “nu” means “now” in Swedish. Another similar example
is the prevalent use of Tuvalu’s “.tv” for television shows and station with no
connection to Tuvalu.

In light of the above, the first thing to
note when discussing the reasonableness of blocking/removal within a relevant
ccTLD is that not all websites, or indeed all Internet intermediaries, operate
with distinct markets delineated by reference to ccTLDs. Consequently,
ccTLD-blocking is only of relevance for those major – typically globally active
– Internet intermediaries that have adopted a ccTLD-based structure. For
example, Google operates country-specific websites differentiated by different
ccTLDs. Thus, users in Sweden would typically access google.se while users in
the UK would visit google.co.uk.

Nevertheless, in many cases the reliance on
ccTLDs as delineating online markets is justified. After all, if a company’s
choice of ccTLD can be seen to indicate its intention to target a particular
market in the context of a jurisdictional analysis (as in the mentioned Pammer/Hotel
Alpenhof
case), that same choice must reasonably be seen as of importance
also in relation to the delineation of court order-based content blocking.

Importantly in its context, the Advocate
General also stated that “the use of a Member State’s internet domain name does
not preclude the directing of activities to other Member States.” However, for
our discussion here, that matters little given that it would be hard to argue
that e.g. google.se is directed at the Danish market as such when there is also
a google.dk site.

The conclusion must be that, if approached
with care and with an awareness of its limitations, ccTLD-blocking is one
possible tool to delineate the geographical reach of court order-based content
blocking by certain types of globally active Internet intermediaries.

 

5. Geo-location technologies[26]

Over the past ten years, I have written fifteen articles and
notes, and given numerous talks and conference presentations, on the legal
implications of geo-location technologies. Perhaps the fact that I still get to publish on this topic can be viewed as a testament to the
limited impact my writings and other activities in this field have had to date.
However, geo-location technologies remain of significant legal importance.[27] And
while the law, and law makers, slowly are becoming aware of these technologies,[28] members of
the Internet industry are already avid users.

Geolocation services and location-aware software
applications have become increasingly popular over the last decade both online
and on mobile phones. They cover a vast array of services that include mapping
and navigation (such as Google Maps and Ovi by Nokia), social networking (such
Facebook and Foursquare) and security for lost or stolen mobile phones (such as
HTCSense.com). Such services can tell users (and if they wish, others) where
they are and allow them to receive content relevant to their location without
having to manually enter the address or postcode. Such are the benefits and
convenience of geolocation services and location-aware applications. They are quickly
becoming an essential and expected aspect of being online for many users.[29]

These technological advancements are in large part motivated
by perceived business advantages. For example, if a website operator can see
where access-seekers are located, “geographically appropriate” advertisements
can be specifically targeted at those individuals. Other perceived advantages
include, for example, ensuring regulatory compliance, spam minimisation,
reducing fraud risk and keeping licensed content within geographical
boundaries. Finally, introducing location-sensitivity into online services may
make them more user-friendly, thereby improving the users’ experience.

The providers of geo-location technology services indicate
the potential accuracy to be very high. Having surveyed a range of geo-location
services, Shavitt and Zilberman note that “[a]ll the databases claim to have
97% accuracy or more at the country level and 80% or more at the city level”.[30] Such figures
can, of course, always be criticised. First of all, when assessing the accuracy
of methods for geo-identification, it is important to avoid placing the focus
on the marketing-driven average accuracy-rates presented by the
companies behind the method in question, and instead pay attention to the context-specific
accuracy rate.

If a company were to assert that its method is, for example,
“98% accurate” on average across all its applications involving analysis of
locations throughout the world, it is likely that the accuracy rate for
Canadian and American location distinctions alone is lower than 98%, given the
unique difficulties in this context.[31]
Placing the focus on context-specific accuracy rates will inevitably complicate
and increase the cost of court proceedings in that expert evidence may be
required in each individual case. However, the importance of ensuring that the
courts base their decisions on the accuracy rate that is relevant in the
particular case at hand cannot be overstated.

Second, there is no reason to assume that accuracy rates
presented today will hold true in the future. Changes in Internet technology
occur with great frequency and may severely impact the accuracy of geo-location
technologies.

Third, the accuracy rates mentioned above are based on the
assumption that no active steps are taken by the Internet users to circumvent
the geo-location technologies used. That assumption quickly loses validity once
one steps out of the lab and into the real world. Where content is sufficiently
valued by Internet users, they may seek to circumvent the geo-location technologies
used in order to access that content. While some circumvention techniques are
technologically advanced (e.g. deep linking to streaming video content without
accessing the HTTP server[32]),
others are easy enough to be used by virtually anyone (e.g. anonymising
techniques[33])
or even inherent in the system-structure (“tunnelling methods”[34]). With this in mind, it
will presumably always be possible to circumvent geo-location technologies.

Even with the caveats above in mind, the argument can be
made that Internet intermediaries ought to supplement, or indeed replace,
ccTLD-based blocking/removal with blocking/removal based on the geographical
location of the user as identified through geo-location technologies. Where
geo-location technologies are used to prevent Internet users from
accessing certain content
, we may speak of “strict geo-location blocking”.
In contrast, where geo-location technologies are simply used to guide users
to certain content
, we may speak of a “country lens”
approach
. I will discuss both of these options.

 

5.1 Strict geo-location blocking

The use of geo-location technologies to prevent Internet
users from accessing certain content – strict geo-location blocking – is not
free from risks. First of all, as noted above, geo-location technologies may be
circumvented, and thus it must always be remembered that there may be leakage.

Second, there are obvious privacy implications associated
with requiring Internet intermediaries to block content based on the location
of their users.[35]
The severity of these implications depend, however, on the extent to which the
Internet intermediary already relies on linking user location with content
access e.g. for advertisement purposes. Obviously, where this is already done,
any argument that requiring blocking based on geo-location technologies
undermines user privacy is of limited relevance.

Third, and more seriously, consequences of
a severe nature are in store if
an extensive use of strict geo-location
blocking becomes the norm rather than the exception. After
all, geo-location technologies have the power to transform the Internet as we
know it into something that more closely resembles our “real” world. In doing
so, geo-location technology risks destroying one of the Internet’s most
valuable and unique characteristics – its borderless nature.[36]

Ultimately, whether strict geo-location
blocking is desirable or not depends on whether we want the blocking to be as
effective as is technically possible, or whether we are prepared to take a more
relaxed attitude, perhaps justified by reference to a greater good for the
Internet’s openness, or perhaps by a fear of other country restricting content.

In any case, both ccTLD-blocking and
geo-location technologies can be circumvented. If it is perfect blocking we are
looking for, we have to look elsewhere. And I suspect we would always be
looking in vain.

 

5.2 The country lens approach

A possible compromise can be found in the
fact that we can use geo-location technologies to guide users to
country-specific pages instead of using such technologies to prevent access to
foreign content.

We can here see a convergence of
geo-location technologies and ccTLD-blocking. When typing in www.google.com
while in Australia, one is automatically taken to www.google.com.au when
pressing the enter key.[37]
Similarly, when typing in www.yahoo.com while in Australia, one is
automatically taken to Yahoo’s Australian website when executing the command.[38]
Intermediaries do this for a range of reasons, such as providing
country-relevant marketing and content. Perhaps somewhat paradoxically then,
the necessity of Internet intermediaries supplementing ccTLD-blocking with
geo-location technology based blocking depends, at least in part, on the extent
to which such technologies are used more generally to guide users to the
“geographically appropriate” ccTLD version of their sites. Arguably, the
stricter the control that guides users to the geographically appropriate ccTLD
site as default, the less legitimate are calls for strict geo-location
blocking.

Importantly, there is, of course, no
necessity in linking this type of geo-location use to ccTLD-blocking, and when
Internet businesses guide users to a country-specific version of their service,
that version can be identified by means other than the traditional ccTLD
designation. In other words, some sites provide a country-specific user
experience without delineating their content by ccTLDs – a country-specific
user experience is provided within the one and same TLD (typically “.com”).[39]
This type of “country lens” approach has the distinct advantage of avoiding the
problems highlighted above in relation to ccTLD-blocking. At the same time,
ccTLD delineation may have a transparency advantage in that users always can
check the ccTLD to identify which country’s content they are being presented
with. To cater for a similar degree of transparency where the country lens
approach is divorced from ccTLD delineation, the Internet intermediaries may,
on the web pages they display, include a prominently displayed icon indicating
which country’s content the users are being presented with. For example, one
could imagine a standardised banner along the left-hand side of the screen
clearly indicating the relevant country both in text and in picture, such as
the country flag.

Whether one advocates the country lens
approach to be tied to the ccTLD system or not, anyone favouring some form of
country lens approach must consider the extent to which Internet users should
be able to steer away from the country-specific site they are guided to.
In her excellent paper “The Future of Cybertravel: Legal Implications of the
Evasion of Geolocation”, Trimble refers to this as “cybertravel”.[40]
It is this – the built in unrestricted ability to cybertravel – that sets the “country
lens” approach apart from strict geo-location blocking.

This consciously provided option, to
disconnect from the particular country-specific user experience the
geo-location technologies would otherwise guide the user to, can be catered for
in a variety of ways. As technologies advance, we may see new ways to achieve
this, but here it suffices to point to two possibilities. For example, the
disconnection from the guided path provided by the geo-location technologies
may be activated by the users’ browser settings. In other words, a structure
may be adopted allowing the geo-location technology’s selection of
country-specific content to be overridden by user selected browser settings.
Alternatively, the Internet intermediary may itself provide the tools for users
to deviate from the country-specific content the geo-location technology would
have guided them to.[41]
The key point here is that there is no need for any technological revolution in
order for the country lens approach to work – all necessary technological
components already exist, and in fact, they are already being used. All that it
takes now is the initiative to clarify the country lens approach’s legal
status.

By catering for cybertravel, the country
lens approach avoids the most severe of the problems with strict geo-location
blocking; that is, it avoids the destructive impact on the Internet’s
“borderlessness” and it avoids over- and under-blocking where geo-location
errors occur. Importantly, it does so while still maintaining the key benefit
of geo-location technologies – their ability to create a country-specific user
experience.

Such an arrangement meets one of the
fundamental requirements I have pointed to for some time. Since 2001, I have
argued that rather than focusing on whether content was targeted at a
particular jurisdiction, as is commonly done, we should focus on “dis-targeting”[42]
– what steps, if any, were taken to avoid contact with the jurisdiction in
question? By excluding certain content from the country-specific user
experience, an Internet intermediary is actively dis-targeting that excluded
content from that particular country. Such an active step should typically
ensure that the intermediary is beyond liability for the content in question.

Critics of the country lens approach will
no doubt point to the fact that it does not effectively prevent people in a
particular country from accessing content a court has ordered be blocked there.
Internet users with a sufficiently strong desire will simply access that
content through cybertravel. Consider, for example, a search engine that has
been ordered to block certain search results. Where the blocking is in the form
of the country lens approach, or indeed ccTLD-blocking, it is easy for users to
still access the content. In light of this, there may be a temptation to favour
strict geo-location blocking. However, first of all, it has already been
illustrated that circumventing strict geo-location blocking is not demanding.
And, even more importantly, at least in the case of search engines, even the
most vigorous opponents of the country lens approach must recognise the
availability of alternative search engines. Thus, even if a particular search
engine was to have the technical ability to flawlessly block certain search
results to the people of a particular country, persons in that country could
simply use an alternative search engine to find and access the relevant
materials.[43]

Finally, it remains to be noted that, like
in the case of strict geo-location blocking, in making necessary the identification
of Internet users’ locations, the country lens has obvious
privacy
implications. However, as in the case of strict geo-location
blocking,
the severity of these implications depend on the extent to
which the Internet intermediary already relies on linking user location with
content access e.g. for advertisement purposes.

In light of this, it appears that the country
lens approach tallies up more virtues and fewer vices than do ccTLD-blocking or
strict geo-location blocking.

 

6. The reasonableness of
blocking/removal beyond the country ordering the blocking

All three approaches discussed above have
been analysed in the context of being used to provide blocking/removal limited
to certain content in a certain country. The extent to which a court order in
one country should force Internet intermediaries to block/remove content beyond
that country is an even more complex matter taking us deep into the quagmire of
public international law, state sovereignty and the duty of non-intervention.
Clearly, it is a matter in relation to which we must again recall the mantra
that “one-size-does-not-fit-all”. And it is a matter involving the same set of
considerations regardless of whether the blocking/removal beyond the country
ordering the blocking is carried out through ccTLD blocking, strict
geo-location blocking or the country lens approach. Indeed, where global
blocking/removal is requested, there will of course be no need to base the
blocking on either of the three approaches analysed in this article.

In my view, we cannot discuss the
reasonableness of blocking/removing beyond the country ordering the blocking in
generic terms. Instead, we must adopt a context-specific approach and discuss
different legal areas independently. For example, it may be reasonable to
expect the blocking/removal of child pornography materials to be carried out
globally, i.e. across the entire range of platforms under the control of an
Internet intermediary – including across all TLDs. However, that does not
necessitate the conclusion that the same level of reaction is justified e.g. in
relation to content that is deemed to violate some intellectual property right
in the country handing down the court order. Consequently, the extent to which
a court order in one country should force Internet intermediaries to
block/remove content beyond that country must depend on the type of legal
action that produced the relevant court order.

Furthermore, given the special role
commonly played by Internet intermediaries, even where it is appropriate to
require an original publisher to remove content globally, it may not
necessarily be justifiable to require an Internet intermediary to extend its
blocking globally. For example, whether Germany ought to issue take down
orders, with global effect, against Germans who have uploaded Nazi propaganda
is a different matter to whether German courts ought to require Internet
intermediaries to block/remove such content globally or only for Germans e.g.
through ccTLD blocking, the country lens approach or indeed, through strict
geo-location blocking.

Drawing upon the discussion above, I propose the following
four broad principles:

Principle 1: The extent to which a court order in one country should force the
blocking/removal of content beyond that country must depend on the type of
legal action that produced the relevant court order.

Principle 2: Generally,
orders requiring global blocking/removal should only be awarded against the
party who provided the content, not parties that merely act as intermediaries
in relation to that content. And such orders should only be awarded by the
courts at the defendant’s place of domicile.

Principle 3: Exceptions
to Principle 2 should be made in relation to particularly serious content such
as child pornography materials.[44]

Principle 4: In
relation to rights
limited to the territory of a
specific country, whether based on registration or not, courts should not order
blocking/removal beyond that country.

These principles do obviously only cover a
selection of issues, and are merely meant as a starting point for further
discussion.

 

7. Concluding remarks

The above has illustrated that global
blocking/removal cannot be the default response to every court order requiring
an Internet intermediary to block/remove certain content in a certain country.
And it was argued that ccTLDs represent a potential tool to delineate the reach
of court order-based content blocking/removal by globally active Internet
intermediaries. However, it was also highlighted that ccTLD-blocking is
associated with certain weaknesses. Thus, the alternative of using geo-location
technologies was examined in some detail. It was concluded that what we may
call a strict geo-location blocking interferes too much with the aim of a
(relatively) borderless Internet. Instead, I proposed a more nuanced country
lens approach making use of geo-location technologies to guide Internet users
to a country-specific user experience, while at the same time maintaining the
option for users to explore Internet content beyond that country-specific user
experience.

It was shown that the approach discussed
works to avoid situations where attempts at regulating the Internet within one
country have a spill-over effect globally. Further, I demonstrated that the
extent to which a court order in one country should force the blocking/removal
of content beyond that country must depend on the type of legal action that
produced the relevant court order.

While hopefully this analysis of ccTLD blocking, strict geo-location blocking and the country lens
approach was useful, much has been left unsaid in this short article. For
example, no attempt has been made to assess the implementation costs associated
with the three different methods. Further, no attempt was made to analyse how
the three alternatives sit within any particular state’s legal system. The
discussion was broader, and in a sense more introductory. Doubtlessly, both
these issues deserve detailed attention in future research efforts.

In addition to the analysis of the three
different methods discussed, an attempt was made at conducting a stock taking exercise
seeking to identify the contours of an internationally recognised, but yet to
be adequately implemented, legal framework for Internet intermediaries. In that
context, several broad principles were identified that ought to amount to a
useful foundation for any future attempt at regulating the liability of
Internet intermediaries.

To conclude the discussion, I wish to
stress that all the alternatives discussed represent compromises. And like
most, if not all compromises, it is unlikely that any of the approaches will be
viewed as ideal by any party. However, perhaps the country lens approach is the
delineations method that can gain the broadest support by the relevant
stakeholders (of which the

there are many indeed).



*
Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond
University (Australia). Researcher, Swedish Law & Informatics Research
Institute, Stockholm University (Sweden). Professor Svantesson is the recipient
of an Australian Research Council Future Fellowship (project number
FT120100583). The views expressed herein are those of the author and are not
necessarily those of the Australian Research Council. The author sincerely
thanks the two anonymous reviewers for their valuable comments.

[1]
Such disputes must be kept separate from legal actions taken against Internet
intermediaries for their actions going beyond the direct intermediary role.
Having said this, one can of course imagine types of disputes in which drawing
a clear line between this type of disputes and disputes based on the role as
Internet intermediary is far from easy.

[2]
I discuss this aspect in more detail in D Svantesson, “Between a Rock and
a Hard Place – an International Law Perspective of the Difficult Position of
Globally Active Internet Intermediaries” (2014) 30 Computer
Law & Security Review
348-356.

[3]
These matters are discussed in detail e.g. in D Svantesson, “The
Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and
Its Practical Effect on U.S. Businesses” (2014) 50 Stanford Journal of
International Law
53-102.

[4]
Macquarie Bank Limited & Anor v Berg [1999] NSWSC 526, at para 14.

[5]
See e.g. note 2 above.

[6]
W S Dodge, “Extraterritoriality and Conflict-of-Laws Theory: An Argument for
Judicial Unilateralism” (1998) 39 Harvard International Law Journal 101,
at 136.

[7]
For example Google seems to generally be operating in this manner, at least in
relation to ex ante blocking: “But when it comes to political
extremism it’s not as simple. Different countries have come to different
conclusions about how to deal with this issue. In Germany there’s a ban on the
promotion of Nazism — so we remove Nazi content on products on Google.de (our
domain for German users) products.
”(R Whetstone, “Free Expression
and Controversial Content on the Web” (14 November 2007) available at http://googleblog.blogspot.com/2007/11/free-expression-and-controversial.html)
(accessed 25 June 2014).

[8]
IGF Background Paper, Workshop 105: “The Role of Internet Intermediaries in
Advancing Public Policy Objectives” available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
(accessed 16 August 2014) at 3.

[9]
Ibid, 4.

[10]
Ibid, 6.

[11]
Google, for example, has “a global all-product ban against child
pornography
”. See note 7 above.

[12]
“Google is not, and should not become, the arbiter of what does and does not
appear on the web. That’s for the courts and those elected to government to
decide.” See note 7 above.

[13]
See note 8 above, 4.

[14]
Ibid.

[15]
Ibid, 10.

[16]
Ibid, 3.

[17]
United Nations Human Rights Council, Report of the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, A/HRC/17/27 (16 May 2011) available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
(accessed 25 June 2014), at 14. This view is widely held. See e.g. a recent
report by ARTICLE19: “Privatised enforcement mechanisms should be abolished. Hosts
should only be required to remove content following an order issued by an
independent and impartial court or other adjudicatory body which has determined
that the material at issue is unlawful. From the hosts’ perspective, orders
issued by independent and impartial bodies provide a much greater degree of
legal certainty.” ARTICLE 19, “Internet intermediaries: Dilemma of Liability”
available at http://www.article19.org/data/files/Intermediaries_ENGLISH.pdf
(
accessed 25 June 2014).

[18]
United Nations Human Rights Council, note 17 above, 12.

[19]
NETmundial Multistakeholder Statement (24 April 2014) available at http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf
(accessed 25 June 2014).

[20]
U Kohl, “Google: the Rise and Rise of Online Intermediaries in the Governance
of the Internet and Beyond (Part 2)” (2013) 21 International Journal of Law
and Information Technology
187-234, 188.

[21]
(Case C-585/08) and (Case C-144/09), respectively.

[22]
Joined Cases C 585/08 and C 144/09, at para 83.

[23]
Opinion of Advocate General Trstenjak delivered on 18 May 2010, at paras 84.

[24]
D Svantesson, “Pammer and Hotel
Alpenhof
– ECJ Decision Creates Further Uncertainty about when E-Businesses
‘Direct Activities’ To a Consumer’s State under the Brussels I Regulation”
(2011)
27 Computer Law & Security Review 298-304.

[25]
Opinion of Advocate General Trstenjak delivered on 18 May 2010, at para 85.

[26]
In parts, this section draws, and expands, upon
previous publications on related topics such as: D Svantesson, Private
International Law and the Internet
2nd ed (Alphen aan den Rijn,
Netherlands: Kluwer Law International, 2012), and D Svantesson, “Time for the
Law to Take Internet Geo-location Technologies Seriously” (2012) 8 Journal
of Private International Law
473-487.

[27]
See e.g. N Selvadurai, “The Proper Basis for Exercising Jurisdiction in
Internet Disputes: Strengthening State Boundaries or Moving towards
Unification?” (2013) 13 Pittsburgh Journal of Technology Law and Policy;
M Trimble, “The Future of Cybertravel: Legal Implications of the Evasion of
Geolocation” (2012) 22 Fordham Intellectual Property, Media and
Entertainment Law Journal
; K F King, “Personal Jurisdiction, Internet
Commerce, and Privacy: The Pervasive Legal Consequences of Modern Geolocation
Technologies” (2011) 21 Albany Law Journal of Science and Technology 61;
M Fagin, “Regulating Speech across Borders: Technology vs. Values” (2003) 9 Michigan
Telecommunications and Technology Law Review
395; J Burnett,
“Geographically Restricted Streaming Content and Evasion of Geolocation: The
Applicability of the Copyright Anticircumvention Rules” (2012) 19 Michigan
Telecommunications and Technology Law Review
461; J R Reidenberg, “Lex
Informatica: The Formulation of Information Policy Rules through Technology”
(1998) 76 Texas Law Review 553; M Geist, “Is There a There There?
Towards Greater Certainty for Internet Jurisdiction” (2001) 16 Berkeley
Technology Law Journal
and D Svantesson, “Geo-Location Technologies and
Other Means of Placing Borders on the ‘Borderless’ Internet’” (2004) XXIII John
Marshall Journal of Computer and Information Law
101–39.

[28]
For example, the existence of geo-location technologies was overlooked in Pammer
v Reederei Karl Schlüter GmbH & KG
and Hotel Alpenhof GesmbH v
Oliver Heller
(Case C-585/08) (Case C-144/09), respectively, and disputed
in Macquarie Bank Limited v Berg [1999] NSWSC 526. In contrast, and more encouragingly, in
the joined cases of eDate Advertising GmbH v X (Case
C-509/09 (Referring court Bundesgerichtshof, Germany))
and Olivier
Martinez, Robert Martinez v MGN Ltd
(Case C-161/10 (Referring
court Tribunal de grande instance de Paris, France
)), Advocate General Cruz Villalón pointed to the existence of
geo-location technologies. Furthermore, geo-location played an important role
in, for example, International League Against Racism &
Anti-Semitism (LICRA) v Yahoo! Inc
[2000] County
Court of Paris, and was noted in cases such as
: National
Federation of the Blind v Target Corp
, 452 F Supp
2d 946 (N D Cal 2006),
Hageseth v Superior Court, 2007 Cal Daily
Op Service 5647, ACLU v Gonzales 478 F Supp 2d 775 (ED
Pa 2007),
Bavarian Administrative Court BayVGH Judgment
of 20 November 2008 10 CS 08.2399, and
OVG Thüringen Decision of 3
December 2008 Az 3 EO565/07.

[29] M
Watts et al, “
Do European Data
Protection Laws Apply to the Collection of WiFi Network Data for Use in
Geolocation Lookup Services?” (2011) 1 International Data Privacy Law
149, 149.

[30]
Y Shavitt and N Zilberman, “A Study of Geolocation Databases”
(1 July 2010) Cornell University Library available at http://www.epic.org/privacy/tools.html
(accessed 25 June 2014), at 3.

[31]
B Edelman, “Shortcomings and Challenges in the Restriction of
Internet Retransmissions of Over-the-air Television Content to Canadian
Internet Users” available at http://cyber.law.harvard.edu/people/edelman/pubs/jump-091701.pdf
(
accessed 25 June 2014),
at 6. The “unique difficulties” Mr Edelman speaks of are multiple. First, a
number of Internet service providers (ISPs) offer their services in both the US
and Canada. Second, the proximity and economic ties between the two countries
mean that many companies have offices in both countries. Third, he notes the
widespread use of intranets with a single access point to the Internet. Fourth,
communication between Canada and the US is not particularly likely to pass
through well-known “peering points” or contain the telltale transoceanic time
delays.

[32]
Ibid, 10.

[33]
Ibid, 8. For some examples of anonymising services, see
e.g.: “EPIC Online Guide to Practical Privacy Tools” available at
http://www.epic.org/privacy/tools.html (accessed 25
June 2014).

[34]
Ibid, 9.

[35] A considerable proportion of recent literature on
geo-location is focused on privacy. See e.g.: R Mura, “Geolocation and Targeted
Advertising: Making the Case for Heightened Protections to Address Growing
Privacy Concerns” (2013) 9 Buffalo Intellectual Property Law Journal 77;
T J Van Hal, “Taming the Golden Goose: Private Companies, Consumer Geolocation
Data, and the Need for a Class Action Regime for Privacy Protection”
(2012-2013) 15 Vanderbilt Journal of Entertainment & Technology Law
713; T Claypoole and R C Balough, “Privacy Considerations Limit Geolocation
Technologies” (2012) Business Law Today 1 and A Diaconescu and C C
Basarabescu, “Private Life and Geo-localisation” (2013) Annals of Constantin
Brancusi University of Targu-Jiu: Juridical Science Series
103. See also:
ARTICLE 29 Data Protection Working Party, Opinion 13/2011 on Geolocation
services on smart mobile devices adopted on 16 May 2011 (881/11/EN WP 185).

[36]
See further: C O’Reilly, "Finding Jurisdiction to Regulate Google and the
Internet" (2011) 2 European Journal of Law and Technology and D Svantesson, “Time for the Law to Take Internet
Geo-location Technologies Seriously”, see note 26 above.

[37]
Test performed 27 March 2014. On some occasions in the past, instead of being
taken to www.google.com.au, one was
taken to www.google.com but with a link
conveniently offering a transfer to Google Australia.

[38]
Test performed 27 March 2014.

[39]
Consider, for example, Twitter. See further: “Country withheld Content” (2014)
available at https://support.twitter.com/articles/20169222-country-withheld-content#
(accessed 25 June 2014).

[40]
M Trimble, note 27 above, 567.

[41]
Consider, for example, Twitter. See further: “Changing Your Country’s Settings”
(2014) available at https://support.twitter.com/articles/20169220#
(accessed 25 June 2014).

[42]
See e.g.: D Svantesson, “What Should Article 7 – Consumer Contracts, of the
Proposed Hague Convention, Aim to Accomplish in Relation to E-commerce?” (2001)
17 Computer Law & Security Report 318-325.

[43]
Here we may pause to consider the competition law implications of a court order
requiring one search engine to block/remove certain content where that court
order does not affect other, competing, search engines.

[44]
Identifying what amounts to such “particularly serious content”, and indeed
defining “child pornography materials”, are interesting and complex
tasks, not least given the different attitudes held in different parts of the
world. However, embarking on such an exercise would take us too far afield in
this brief article.

Delineating the Reach of Internet Intermediaries’ Content Blocking – “ccTLD Blocking”, “Strict Geo-location Blocking” or a “Country Lens Approach”?