* Catedrático de Derecho internacional privado 
    Facultad de Derecho 
    Universidad Complutense de Madrid 
    E- 28040 MADRID 
    pdmigue@ucm.es  

 
  
 
 
Documento depositado en el archivo institucional Docta Complutense 
 https://docta.ucm.es  

 

 

 
 
 
 
 

TERRITORIAL SCOPE OF ORDERS AGAINST  

ILLEGAL CONTENT ONLINE   

 

 

 

  

 
Pedro Alberto DE MIGUEL ASENSIO * 

 
 
 

Published in: 
 

Ius Vivum: Kunst – Internationales – Persönlichkeit,  
Festschrift für Haimo Schack zum 70. Geburtstag,  

            Tübingen, Mohr Siebeck, 2022,  
ISBN 978-3-16-161468-2, pp. 794-804 

 
 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

2 
 

 

TERRITORIAL SCOPE OF ORDERS AGAINST ILLEGAL 

CONTENT ONLINE  

Pedro A. DE MIGUEL ASENSIO 
 

I. Introduction. II. International jurisdiction as a precondition. III. Removal of content, blocking injunctions and other 

measures. IV. Intellectual property rights. V. Data protection and the right to de-referencing. VI. Personality rights. VI. 

Future perspectives.  

I. Introduction 

Claims against online activities raise special challenges with regard to the spatial 
scope of remedies. The topic is of particular importance in relation to the cross-border 
protection of intellectual property (IP) rights and personality rights. Furthermore, the 
rules on international jurisdiction play a significant role in this regard and significant 
implications arise regarding recognition and enforcement of judgments. Professor Dr. 
Haimo Schack, to whom the following paper is dedicated, has made extraordinary and 
lasting contributions to all those sectors.  

The discussion on the territorial scope of injunctions is relevant in regards to the 
position not only of those directly liable but also of intermediaries, such as online 
platforms and social media, whose services are used by third parties to disseminate 
content or to access it. Even when such intermediaries benefit from immunities provided 
for under EU law, they may be the addressees of an order by a court or administrative 
authority to terminate or prevent an infringement, in particular to remove or disable access 
to illegal content. Arts. 12.3, 13.2 and 14.3 of Directive 2000/31/EC (E-commerce 
Directive) and Arts. 3.3, 4.2 and 5.4 of the Proposal for a Regulation on a Digital Services 
Act (DSA Proposal)1 are illustrative in this regard. 

Both the material and territorial scope of injunctions against illegal content online 
may be controversial. The balancing of the fundamental rights involved when 
determining the material scope requires a case-by-case analysis. Such fundamental rights 
include, among others, the freedom of expression, encompassing the fundamental right 
to receive or convey information, the freedom to conduct a business, the protection of IP 
and of privacy and personal data, as evidenced by the case-law of the ECtHR2 and the 

 
1 Proposal for a Regulation on a Single Market for Digital Services (Digital Services Act) and 

amending Directive 2000/31/EC, COM/2020/825 final, 15 December 2020. 
2 See, e.g., ECtHR 10 October 2013 and 16 June 2015, Delfi AS v Estonia, 64569/09; 2 February 

2016, Magyar Tartalomszolgáltatók Egyesülete and Index.hu, Zrt v. Hungary, 22947/13; 4 December 2018, 
Magyar Jeti Zrt v. Hungary, 11257/16; and 23 June 2020, Kharitonov v. Russia, no. 10795/14. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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CJEU3. This contribution focuses on the territorial reach of injunctive relief in the 
framework of proceedings in civil and commercial matters. 4   

II. International jurisdiction as a precondition 

 The international jurisdiction of the court hearing the case is a prerequisite for the 
adoption of measures against illegal online content and decisively conditions their 
territorial scope.5 This applies also to those situations where provisional measures, such 
as preliminary injunctions, are sought. The situations at issue are typically considered as 
matters relating to tort for the purposes of Regulation 1215/2012, the Brussels I (Recast) 
Regulation. Except where the defendant is not domiciled in a Member State, the uniform 
jurisdiction rules of the Regulation apply, without prejudice to Article 35 on provisional 
measures. First, in the absence of a valid choice of court agreement, general jurisdiction 
is conferred to the courts of the defendant’s domicile (Art. 4) or the domicile of one of a 
number of defendants provided that the claims are closely connected in accordance to 
Art. 8. Such jurisdiction is not territorially limited and hence the plaintiff has the option 
of bringing his entire claim before those courts. Furthermore, pursuant to Art. 7(2) the 
courts of the place where the harmful event originated and from which the illegal content 
was issued and put into circulation have jurisdiction with regard to all the harm caused 
by the activity concerned and hence not limited to the forum Member State. However, in 
practice these two heads of jurisdiction will usually coincide, since the decision to place 
content online and the activation of the display process are typically to be localised at the 
place where the alleged infringer has its seat.6 

 In contrast with the territorially unlimited scope of the jurisdiction granted in those 
cases, the courts of the place where the event produced its harmful effects upon the victim 
have in principle only limited jurisdiction under Art. 7(2). Although a flexible approach 
prevails under which the likelihood of the occurrence of damage may arise from the 
accessibility via a website in the forum to the illegal content at least in cases involving 
the alleged infringement of IP rights of the forum,7 jurisdiction is restricted to rule on the 

 
3 See, e.g., CJEU EU:C:2010:159, Google France and Google; EU:C:2011:474, L'Oréal and 

others; EU:C:2011:771, Scarlet Extended; EU:C:2012:85, SABAM; EU:C:2014:192, UPC Telekabel Wien; 
EU:C:2016:689, Mc Fadden; EU:C:2019:773, GC and Others (De-referencing of sensitive data), para. 59; 
and EU:C:2019:821, Glawischnig-Piesczek. Several pending cases are relevant in this connection, 
including C-682/18, YouTube; C-442/19, Stichting Brein/News-Service Europe BV; C-401/19 Republic of 
Poland v European Parliament and Council of the European Union; and C‑800/19, Mittelbayerischer 
Verlag. 

4 See De Miguel Asensio, Derecho privado de Internet, 5th ed., 2015, 619-627; id.,  Conflict of 
Laws and the Internet, 2020, 280-282 and 384-395; Svantesson, Solving the Internet Jurisdiction Puzzle, 
2017, ch. 9; Douglas, Journal of Equity, 2018, 34, https://ssrn.com/abstract=3229938 (30.03.21); Hess, Riv. 
dir.int.pr.proc., 2019, 284-301; Trimble, Lewis & Clark Law Review, 2019, 501-552; and Lutzi, Private 
International Law Online, 2020, 82-84. 

5 See CJEU EU:C:2011:238, DHL Express France, para 33. 
6 CJEU EU:C:2012:220, Wintersteiger para. 37; and EU:C:2015:28, Hejduk, para. 25. See also 

EU:C:1995:61, Shevill, para 26.  
7 CJEU EU:C:2013:635, Pinckney, para. 42; and EU:C:2015:28, Hejduk, para 34. Further 

clarifications by the Court on the application of Art. 7.2 Brussels to online torts may result from pending 
case C-251/20, Gtflix Tv.  



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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injury caused in the forum State.8 Given that the courts of a multiplicity of Member States 
may have limited jurisdiction, this criterion is known as the ‘mosaic approach’. 

However, the CJEU has developed specific rules with regard to the application of 
Art. 7(2) to infringements of personality rights that result from the placing online of 
content, given the nature of the harm which may be caused and the limited effectiveness 
of the fragmentation of the jurisdiction based on the occurrence of the damage in that 
context. On the basis that the impact which material placed online is liable to have on an 
individual’s personality rights might best be assessed at the place where the alleged victim 
has his centre of interests, the Court developed the special rule that in claims concerning 
those torts Art. 7(2) grants jurisdiction to the courts of the Member State where the centre 
of the alleged victim’s interest is based with regard to liability in respect of all damage, 
without such jurisdiction being limited to the territory of the forum.9  

 For the purposes of the present analysis, the aspect to be highlighted is the 
significance of the difference between territorially limited and unlimited jurisdiction that 
results from the Brussels I Regulation. The concerns that the territorial scope of an order 
exceeds what is necessary to achieve its objective arises in connection to situations in 
which a court has territorially unlimited jurisdiction. In those situations, the courts are in 
a position to adjudicate on all the damage resulting from the illegal content encompassing 
the facts and effects relating to the territories of foreign countries including third States.10 
Regarding the remaining situations, the restrictive reach of its jurisdiction should prevent 
the court from adopting measures with respect to the dissemination or the effects of the 
illegal content beyond the borders of the forum Member State.  

 Therefore, from the global perspective, it is noteworthy that the mosaic approach, 
which has been the subject of intense criticism11, may yield in many situations results that 
are consistent with the goal that the territorial scope of court orders does not exceed what 
is necessary to achieve its objective. In fact, the need to ensure that court orders meet that 
requirement arises typically only in situations where courts have jurisdiction to adjudicate 
on all the damage caused as a result of the unlawful online activity. 

III. Removal of content, blocking injunctions and other measures 

 The CJEU in Bolagsupplysningen addressed the interaction between the territorial 
extent of the jurisdiction conferred on the courts of the respective Member State under 
the Brussels I Regulation (Recast) and the remedies available to the court seised. The 
CJEU held that an application for the rectification or removal of content placed online on 
a website can only be made before a court with jurisdiction to rule on the entirety of an 

 
8 CJEU EU:C:1995:61, Shevill and Others, paras. 30 and 33; EU:C:2015:28, Hejduk, para. 37; and 

EU:C:2017:766, Bolagsupplysningen and Ilsjan, para. 31. 
9 CJEU EU:C:2011:685, eDate Advertising and others, paras. 48-52. 
10 Opinion of AG Szpunar  EU:C:2019:458, Glawischnig-Piesczek, para. 85. 
11 See Opinion of AG Cruz Villalón EU:C:2014:2212, Hejduk , para. 41 (in the field of copyright 

infringement); Opinion of AG Bobek EU:C:2017:554, Bolagsupplysningen and Ilsjan, paras. 71-98 
(regarding the violation of personality rights); Hess, in Protecting Privacy in Private International and 
Procedural Law and by Data Protection, 2015, 106; and Lutzi, Private International Law Online, 2020, 102-
103. However, noting that the suppression of the jurisdiction of the courts of each Member State where 
damage occurs in respect of the damage caused in its territory could cause distorsions, see De Miguel 
Asensio, Conflict of Laws and the Internet, 2020, 175-176 and 240-242.  



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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application for compensation for damage given the ubiquitous nature of the Internet and 
that the scope of distribution of online content is, in principle, universal. The Court found 
that an application for the rectification of online information or removal of content placed 
on a website is ‘a single and indivisible application’.12 Remedies establishing the 
prohibition of any future use over the Internet of a term by the defendant or imposing a 
public online apology by the defendant have been regarded as looking very much like 
indivisible remedies for these purposes13. 

However, Bolagsupplysningen confirmed that ‘mosaic’ jurisdiction persists. 
Courts whose jurisdiction is based on the ‘mosaic approach’ are competent only in respect 
of the harm caused in the territory of the Member State of the court seised. If the courts 
of a Member State have jurisdiction only in respect of damage -or effects- in their 
territory, the measures they take must be limited to that territory. In view of the limitation 
of their jurisdiction, such courts cannot adopt measures that, because of their universal 
reach, should be adopted only by a court having jurisdiction with unlimited scope. Hence, 
such courts are not, in principle, competent to adopt injunctions ordering the rectification 
of online information or the removal of content from the Internet, to the extent that such 
measures may undermine the online availability of content beyond the forum State. This 
is consistent with the view that the scope of a measure, such as an injunction, is limited 
in the first place by the extent of the jurisdiction of the court granting it.  

Additionally, that finding is compatible with the fact that the limited jurisdiction 
granted to the courts of the place where the event caused its harmful effects allows the 
court concerned to adjudicate claims regarding the part of the divisible remedies that 
relates to the portion of the damage produced in its territory. This is not only relevant in 
relation to the monetary compensation of damages suffered in that territory but also with 
respect to other remedies, such as restrictions to the dissemination of information insofar 
as the claims refer only to that territory. The judgment in Bolagsupplysningen does not 
undermine the competence of a court having limited jurisdiction on the basis of Art. 7(2) 
of the Brussels I Regulation (Recast) to adopt injunctions concerning the territory of the 
forum State14. So-called blocking injunctions, that compel local access providers to block 
their users from accessing certain Internet sites, are a well-known example of injunctions 
whose scope is, in principle, limited to the forum State.    

IV. Intellectual property rights 

In claims concerning the infringement of IP rights, in addition to the scope of the 
court’s jurisdiction, another conditioning factor of the spatial extent of the measures that 
can be adopted is the territorial nature of the rights allegedly infringed. Such measures 
should be limited to the territory of the countries in respect of which an infringement is 
established, by virtue of the corresponding law(s) of the country(ies) for which protection 
is claimed (Art. 8 of Regulation 864/2007, Rome II Regulation). 

The CJEU addressed this issue in relation to the infringement of unitary IP rights. 
As noted in DHL Express, the territorial scope of a prohibition against further 

 
12 CJEU EU:C:2017:766, Bolagsupplysningen and Ilsjan, para. 48. 
13 Opinion of AG Bobek EU:C:2021:124, Mittelbayerischer Verlag KG, para.39. 
14 Lundstedt, IIC, 2018, 1043-1044. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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infringement of a Union trade mark is to be determined both by the territorial jurisdiction 
of the court issuing that prohibition and by the territorial extent of the Union trade mark.15 
Hence, it is decisive the unitary character of the exclusive right, which implies that has 
equal effect throughout the Union, and the extent of the jurisdiction granted to the courts 
of the Member State concerned. According to Art. 126 of Regulation 2017/1001 on the 
EU trade mark (EUTMR), a court whose jurisdiction is based on Art. 125(1) to (4) has 
jurisdiction in respect of acts of infringement committed within the territory of any of the 
Member States. By contrast, a court whose jurisdiction is based on Art. 125(5)16 has 
jurisdiction only in respect of acts committed within the territory of the Member State in 
which that court is located. 

In situations where jurisdiction is based on Art. 125(1) to (4) of the EUTMR, with 
a view to ensure uniform protection, the CJEU held that a prohibition against further 
infringement issued by a EU trade mark court must as a rule extend to the entire area of 
the EU.17 The same applies to situations where the jurisdiction of the court is based on 
the multiple defendant forum provided for in Art. 8(1) of the Brussels I Regulation 
(Recast), which grants also unlimited jurisdiction.18 This is consistent with the unitary 
character and the extension of the right. Notwithstanding that, the CJEU has admitted that 
the territorial scope of the prohibition may, in certain circumstances, be restricted, 
because the scope of the right may not extend beyond what is needed to prohibit uses that 
are liable to affect the functions of the trade mark. Such a finding is relevant, in particular, 
where the acts of infringement are limited to part of the territory of the EU or there is no 
likelihood of confusion in a part of the EU.19 

V. Data protection and the right to de-referencing  

The territorial reach of online content removal or blocking measures based on EU 
data protection law is of particular importance, given that some of the rights granted to 
the data subjects by the GDPR are not protected in similar terms in other jurisdictions, 
such as the US. The judgment of the CJEU in Google (Territorial scope of de-referencing) 
is illustrative in this regard.20 The territorial scope of the GDPR as established in Art. 3 
is decisive for a controller or a processor established in a third country to be subject to 
the Regulation. In those situations the rights of the data subject, including the right to be 
forgotten laid down in Art. 17 of the GDPR, can be asserted against the controller21. 
However, in Google Spain22 the Court did not address whether EU law requires that the 
de-referencing by the search engine operator applies to all versions of its search engine 

 
15 CJEU EU:C:2011:238, DHL Express, para 33. 
16 On the interpretation of this jurisdiction ground with regard to online activities, see CJEU 

EU:C:2019:674, AMS Neve and others.  
17 CJEU EU:C:2011:238, DHL Express, para. 44. 
18 CJEU, EU:C:2017:724, Nintendo, paras. 61-66. 
19 CJEU EU:C:2011:238, DHL Express, paras. 47-48; and EU:C:2016:719, combit Software, para. 

32. 
20 CJEU EU:C:2019:772, Google (Territorial scope of de-referencing),. 
21 EDPB, “Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines 

cases under the GDPR (part 1)”, 7 July 2020, https://edpb.europa.eu (31.04.2021). 
22 CJEU EU:C:2014:317, Google Spain and Google, C-131/12,. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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or if it should be limited to searches conducted from the territory of the EU. Those issues 
were discussed in Google (Territorial scope of de-referencing). 

The refusal by the Court to establish that de-referencing under Art. 17 of the 
GDPR should generally have a global scope was influenced by the diversity of regulations 
existing worldwide. Such variety calls for a cautious attitude when measures are adopted 
on the basis of the legislation of a single territory (in this case the EU). The Court 
acknowledged that numerous third States do not recognise the right to de-referencing or 
have a different approach to it and that the balance between the right to privacy and the 
freedom of information varies significantly around the world (paras 59-60). Precisely this 
link with fundamental rights reinforces the advisability of a cautious approach, insofar as 
the effectiveness of such measures could be contrary to public policy in those third States, 
which would make their recognition and enforcement in those territories impossible. 

Furthermore, the multiplicity of legal orders favours the view that the scope of the 
rights granted to data subjects by the GDPR does not go beyond the territory of the 
Member States. The Court held that the GDPR does not impose in principle obligations 
that concern the activities of controllers established in third States but subject to the 
GDPR to the extent that such activities do not have a significant impact within the EU 
(para. 62). However, the Court noted that while EU law does not require the removal of 
links from all versions of the search engine concerned, it also does not prohibit the 
adoption of such global measures by a supervisory of judicial authority of a Member 
State.23 Therefore, territorially unlimited measures can be justified in the light of national 
standards of protection of fundamental rights, without the Court providing additional 
clarifications in this regard (paras. 64 and 72).  

Additionally, the Court admitted that territorially limited measures pose a risk of 
insufficient protection of data subject rights, because users’ access from outside the EU 
to a link referring to information regarding a person whose centre of interests is situated 
in the EU may have substantial effects on that person within the Union (para. 57). In such 
circumstances, the issue arises as to whether territorial restriction of de-referencing orders 
may call for supplementary control measures, for example, in relation to the eventual use 
in the EU of personal information obtained through the use of the search engine outside 
the EU. However, the effectiveness of such additional measures seems uncertain. 

           The judgment in Google (Territorial scope of de-referencing) is also of great 
interest with respect to the significance of geo-blocking techniques to implement 
territorially limited measures. In practice, such orders impose an obligation (of result) 
whose fulfilment requires the responsible party to adopt the appropriate measures at all 
times. As highlighted by the Court in its ruling, the search engine operator is under an 
obligation to “effectively prevent or, at the very least, seriously discourage an internet 
user conducting a search from one of the Member States”… from gaining access, via the 
list of results displayed following the search, to the links concerned. The precise scope of 
that obligation may raise doubts because it rests on flexible expressions such as “seriously 
discourage”, but the reliability of the geographic localization process and the 

 
23 The Conseil d’État found that in the main proceedings in case C-507/17 there were no grounds 

to order  the operator to carry out that de-referencing beyond the EU territory, see Conseil d’État, 
FR:CECHR:2020:399922.20200327, paras. 8-10. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

8 
 

effectiveness of the consequent restriction of access are the responsibility of the search 
engine operator.  

 An additional factor of uncertainty may concern whether de-referencing orders 
based on Art. 17 GDPR should be limited to part of the territory of the EU. The ruling in 
Google (Territorial scope of de-referencing) suggests that such measures should refer in 
principle to the territory of all Member States. This approach is in line with the fact that 
the relevant rules belong to a Regulation having direct application in all Member States. 
However, the Court accepted that there may be situations in which it is possible for the 
de-referencing to be limited to one Member State. It is noteworthy that the GDPR allows 
different results between Members States on issues such as the derogations necessary to 
reconcile the right to data protection with the freedom of information (Art. 85 GDPR). 
The Court stressed the importance of the cooperation mechanisms between the national 
supervisory authorities of the Member States laid down in the GDPR as the framework 
that may enable the adoption of a de-referencing decision covering the territory of all the 
Member States of the EU (paras. 68-69). However, such cooperation procedures are not 
available where the request is made in the framework of civil proceedings. The rationale 
and objectives of the GDPR support the view that content removal measures based on the 
GDPR should usually refer to the Union as a whole. This approach may also be relevant 
to avoid uncertainties as to which is the Member State concerned.24  

From a broader international perspective, the conclusion in Google (Territorial 
scope of de-referencing) that the operator is in principle not required to carry out that de-
referencing on all versions of its search engine, can be regarded as positive for global 
online service providers. Notwithstanding that, the approach adopted by the Court leads 
to a situation traditionally rejected by that kind of service providers, since it results in the 
geographical fragmentation of the dissemination of content on the Internet and the need 
to adapt to local requirements. Such fragmentation is consistent with the political 
organization of the world and the lack of global standards regarding the legality of content 
disseminated and activities carried out on the Internet. 

V. Personality rights 

The CJEU dealt with the spatial scope of injunctions against content disseminated 
on social networks likely to infringe personality rights in Glawischnig-Piesczek.25 
However, the fact that the request for a preliminary ruling concerned whether Art. 15(1) 
of the E-commerce Directive generally precludes imposing obligations to social network 
providers to remove illegal information worldwide influenced the limited significance of 
the judgment. In essence, the Court held that the E-commerce Directive does not establish 
any territorial limitation on the scope of the measures and hence it does not preclude them 
from producing effects worldwide (paras. 49-50).  

However, such a finding does not imply that the Directive provides a legal basis 
for the adoption of measures with such an scope, nor that the adoption of such measures 

 
24 For instance, the judgment in Google (Territorial scope of de-referencing) refers to the Member 

State of residence of the person benefiting from the de-referencing (paras. 43 and 66), the Member State 
where its centre of interests is located (para. 57) and the Member State in which the request for de-
referencing was made (para. 43). In some cases those factors may not be located in the same Member State. 

25 CJEU EU:C:2019:821, Glawischnig-Piesczek. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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may take place without respecting certain requirements. The Court merely highlighted 
two issues in a vague manner. First, that it is necessary to ensure that EU rules in that area 
are consistent with the rules applicable at international level (para. 51). Second, that it is 
up to the Member States to ensure that the measures which they adopt and which produce 
effects worldwide take due account of the rules applicable at international level (para. 
52). The Court provided no guidance to specify which rules are applicable at the 
international level. It only mentioned the global dimension of electronic commerce and 
recitals 58 and 60 of that Directive as indicative of the need to respect the rules applicable 
at international level (para 51). Recitals 58 and 60 state the need for consistency with the 
rules applicable at international level and establish that the Directive is without prejudice 
to the results of discussions within international organisations, including WTO, OECD 
and UNCITRAL. 

  VI. Future perspectives 

Pursuant to Art. 8(2)(c) of the DSA Proposal, concerning intermediary services 
Member States shall ensure that the territorial scope of an order to act against illegal 
content does not exceed what is strictly necessary to achieve its objective. That 
assessment is to be made in accordance with the applicable rules of Union and national 
law, including the Charter, and, where relevant, general principles of international law. 
Furthermore, Recital 31 of the Proposal states that the national judicial or administrative 
authority issuing the order should balance the objective that the order seeks to achieve, in 
accordance with its legal basis, with the rights and interests of all third parties that may 
be affected. Additionally, where the order may have effects beyond the territory of the 
Member State of the authority concerned, Recital 31 requires the authority to assess 
whether the content is likely to be illegal in other Member States concerned and, where 
relevant, take account of rules of EU law or international law and the interests of 
international comity. Art. 8(2)(c) refers only to intermediary services providers, but 
similar safeguards should be taken into consideration when establishing the territorial 
scope of measures against content providers.  

The main innovation of the DSA Proposal in this regard is to make explicit the 
requirement that the territorial scope of a measure should be limited to what is strictly 
necessary to achieve its objective. Therefore, it is clear that having territorial unlimited 
jurisdiction is a prerequisite but not sufficient for the adoption of measures having effects 
worldwide. A court having unlimited jurisdiction may be prevented to adopt measures 
which produce effects worldwide or beyond the territory of the forum because of a 
question of substance.26 

As previously discussed, in certain situations the adoption of measures having 
effect in (or with regard to) the territory of several States may be subject to the application 
of the laws of the States concerned in respect of their respective territories. In particular, 
that may be the case regarding IP infringements on the basis of Art. 8 of the Rome II 
Regulation to the extent that no unitary rights are involved. In other sectors, the choice of 
law rules may lead to the application of a single law to online activities having effects on 
multiple jurisdictions. This may be the case in the field of non-contractual obligations 
arising out of violations of privacy and rights relating to personality, including 

 
26 See Opinion of AG Szpunar, EU:C:2019:458, Glawischnig-Piesczek, para. 86. 



 
Pedro A. De Miguel Asensio 

“Territorial Scope of Orders against Illegal Content Online”, Ius Vivum: Kunst – Internationales – Persönlichkeit, 
Festschrift für Haimo Schack zum 70. Geburtstag, Tubinga, Mohr Siebeck, 2022, pp. 794-804  

 
 

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defamation. Given its exclusion from the Rome II Regulation -Art. 1(2)(g)-, that is an 
area where the choice of law rules of the Member States remain applicable and in some 
cases may lead to the application of the law of the victim’s habitual residence to 
adjudicate a claim arising from content dissemination worldwide.27  

In situations where orders on the removal worldwide of online information can be 
adopted on the basis of a single law, a particularly cautious and prudent approach is called 
for. International comity requires self-limitation especially with regard to such orders and 
this implies that the court should assess if the protection of the injured person may be 
achieved by merely restricting access to content based on geo-blocking technologies 
rather than by removing content since the latter may undermine the availability of content 
in countries where it is lawful.28 This approach is consistent with the position adopted by 
the Court in Google (Portée territoriale du déréférencement). 

Restraint when adopting measures against intermediary service providers acting 
globally is consistent with the potential global reach of online information that contrasts 
with the political division of the world. The resulting fragmentation is also coherent with 
the existence of significant differences at world level concerning the scope and balancing 
of the fundamental rights involved. The increasing role of geolocation tools and blocking 
injunctions restricting access from the forum to illegal content are illustrative in this 
regard.29 This approach is also in line with the finding that recognition and enforcement 
of measures having worldwide effects may prove difficult in other countries, including 
the one where the intermediary is headquartered. The notorious cases Yahoo v. LICRA30 
and Google v. Equustek31 evidenced that the recognition of such measures may be 
challenged abroad. 

Nevertheless, in certain situations the restraint will be compatible with the 
adoption of measures concerning the removal of information worldwide. That may be the 
case especially in situations where the dissemination of the content concerned has a 
particularly close connection to the forum State and the addressee of the injunction or the 
interests in need of protection are also located in that country and the balancing between 
the fundamental rights involved so justifies. Furthermore, it is noteworthy that Art. 
8(2)(c) of the DSA Proposal refers to orders addressed to providers of intermediary 
services. Hence, it can be argued that such a restraint does not apply in the same terms to 
orders addressed to content providers –not intermediaries- over whom the court has 
territorially unrestricted jurisdiction. However, a case-by-case analysis taking into 
consideration the abovementioned factors seems appropriate also in those situations. 

 
27 On the potential significance of the country of origin principle within the EU to undermine the 

application of the law designated by the conflict rule in that field, see Opinion of AG Bobek 
EU:C:2021:124, Mittelbayerischer Verlag KG, para. 81. 

28 Opinion of AG Szpunar EU:C:2019:458, Glawischnig-Piesczek, para. 100. 
29 The prohibitions set out in Regulation (EU) 2018/302 on addressing unjustified geo-blocking 

(OJ L 60I, 2.3.2018, p. 1) are not applicable where the blocking or limitation of access is necessary in order 
to ensure compliance with a legal requirement, as stated in Art. 3(3). 

30 Yahoo !, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, et al 145 F. Supp. 2d 1168, 
Case No. C-00-21275JF (N.D. Ca., September 24, 2001) y 433 F.3d 1199 (9th Cir. 2006). 

31 Google Inc. v. Equustek Solutions Inc., 2017 SCC 34; and Google LLC v. Equustek Solutions 
Inc., Case No. 5:17-cv-04207-EJD, 2017 WL 5000834 (N.D.Cal. Nov 2, 2017) and (N.D. Cal. Dec. 14, 
2017).