The question of the geographic scope of content restrictions is relevant to all stakeholders, including individuals who post content or are affected by the posted content. Although any assertion of extraterritorial jurisdiction is exceptional and must be subject to international laws, principles, and norms on sovereignty and comity, in practice, there are increasing examples of extraterritorial actions on online content.
To support further multistakeholder discussions on this evolving and complex issue of the geographic scope of content restrictions, the I&JPN has released a Framing Brief to document the current consensus across different stakeholders on the topic, and help inform future discussions.
The framing brief was presented at a webinar on October 19, 2022.
Since 2012, the Internet & Jurisdiction Policy Network has brought together stakeholders from governments, the private sector, international organizations, the technical community, and civil society to discuss cross-border content moderation and restrictions in the Content & Jurisdiction Program Contact Group. On a monthly basis, the group has shared their experiences and policy challenges and exchanged insight on how the actions of governments and the private sector are shaping the accessibility of different types of online content around the world.
“We have discussed the topic of geographic scope of content restrictions for a few years in the Content & Jurisdiction Contact Group and we felt it was important to document and share the key points from these discussions, and this is exactly what this framing brief does.” said Ajith Francis, Director Policy Programs, Internet & Jurisdiction Policy Network.
The Framing Brief is divided into three sections: 1) Context, 2) Potential relevant factors, and 3) Conclusion.
The Context section identifies the diverging tensions concerning this issue and documents different elements such as: standards of due process, a brief outline of differences of public law and private law application in the context of content restrictions, the burden of recourse, technical dimensions of content restrictions, and conflicts of laws and conflicting decisions.
The Potential relevant factors section deals with identifying the different elements that may be considered in the determination of geographic scope. It is divided into three subsections: 1) location of poster or intermediary, 2) scope of harm, and 3) international normative convergence.
“With the EU Digital Services Act explicitly referring to “territorial scope” and instances of court decisions that have regional or global scope in terms of content restrictions, it is timely and important to frame the discussion on the issue of geographic proportionality of content restrictions and also to progress this discussion,” said Contact Group Coordinator, Wolfgang Schulz, Research Director of the Alexander von Humboldt Institute for Internet and Society.
