21 October 2022CopyrightSarah Speight and Muireann Bolger

Streaming providers don’t infringe when users apply VPNs, CJEU urged

Advocate general says streaming platforms should not liable if content was accessed via a virtual private network | Deliberately ineffective geoblocking systems would negate this principle, he advised.

Streaming platforms should not be liable for infringement if their users use virtual private networks (VPNs), unless it emerges that they deliberately applied ineffective blocking systems, according to an advocate general (AG) of the Court of Justice of the European Union ( CJEU).

AG Maciej Szpunar issued his opinion on Thursday, October 20, urging the CJEU to rule that a platform would not be liable in this scenario—a development first reported by the IP Kat blog.

However, he did note that liability would exist if the streaming platform failed to adopt effective geoblocking restrictions; made content available in areas for which it has not secured IP rights; or implemented geoblocks that are intentionally ineffective.

Szpunar issued his opinion following a request for a preliminary ruling from the Austrian Supreme Court of Justice ( Oberster Gerichtshof), concerning a case between two Serbian companies.

The dispute arose between Grand Production, which produces entertainment TV programmes that are broadcast in Serbia by a local broadcaster; and GO4YU Beograd (now MTEL), which manages an internet streaming platform accessible from Serbia and elsewhere.

GO4YU currently does not have the rights to rebroadcast Grand Production’s programmes over the internet outside the territories of Serbia and Montenegro and is, therefore, obliged to block access for such users.

But, by using a special VPN server to connect to the internet, users can circumvent this block because the server camouflages the IP address and the user’s physical location to make it appear as though they reside in the permitted countries.


Grand Production alleged that GO4YU would be aware of this workaround and believes that its programmes were viewed in Austria via Go4YU’s streaming service between April and June 2020.

Upon request by Grand Production, the Handelsgericht Wien (Commercial Court of Vienna, Austria) dictated a resolution in September 2020 of provisional measures against the GO4YU and MTEL, prohibiting them from broadcasting its programmes in Austria.

A series of interim injunctions ensued before the matter reached the Austrian Supreme Court, which decided to suspend proceedings and defer to the CJEU, asking it to clarify how the concept of communication to the public in Article 3(1) of the InfoSoc Directive should be interpreted and applied.

The Austrian court raised three issues: the scope of the liability of the operator of a streaming service for the communication to the public of copyrighted content without providing for the authorisation of the holders; the possible liability of entities collaborating with such an operator; and the scope of the courts of EU member states when addressing such alleged copyright infringements.

Borderless nature

Szpunar pointed to the borderless nature of the internet, but stated that in a legislative context there are territorial rights and laws to consider.

This means there is a “fundamental contradiction between the transboundary and global character of the internet, and the territorially limited rights and obligations inherent in activity of various kinds carried out through it,” he said.

He principally addressed the issue of geographic access blocks, which are various security measures intended to prevent content in digital (electronic) format from being used, contrary to the will of the content provider.

Szpunar held that if the copyright owner (or its licensee) has applied such a block, its broadcasts are intended only for people who access content in territories where they are authorised to do so.

Circumvention is possible

While Szpunar found that in this case, GO4YU does not make a public communication of such programmes in the territory of the EU, he noted that different types of technical means, including VPN services, make it possible to circumvent these blocks.

“While there are technical means to counteract this practice, they are not, and probably never will be, fully effective—the advancement of hacking techniques is always one step ahead of the advancement of protection mechanisms,” he said.

He noted that while Grand Production company is “probably right” in stating that GO4YU is aware that its geoblocking of access is being bypassed via the VPN service, this does not imply that GO4YU is responsible for the public communication of such programmes to the aforementioned users.

A question of liability

The situation, he explained, would be different only if GO4YU “intentionally” applied an ineffective geographical block to enable access to people who are outside the territory in which access is authorised.

In conclusion, Szpunar opined that the operator of a streaming platform that retransmits a television programme on the internet “will not violate the exclusive right to communicate works to the public” when users circumvent, through a VPN service, a geographic access blocker.

He cited various cases, suggesting that the CJEU adopts a similar approach that it took with those. They include Svensson (2014), in which the CJEU held that although hyperlinking is a communication to the public, linking to content which has been made “freely available” online by the rights owner would not amount to infringement because that communication had not been to a ‘new public’.

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