According to an information note from LaLiga, the Commercial Court No. 1 of Córdoba has issued several orders granting LaLiga and Telefónica precautionary measures “unaudita parte” (“without hearing the other party”, without previously hearing the defense). These measures specifically target two of the providers of VPN services best known on the market: NordVPN and ProtonVPN. The consequences are very important.
Dynamic blocking obligation. The court order – to which we have not had access, and which is mentioned in LaLiga – requires that both NordVPN and ProtonVPN must:
“Immediately implement in its internal systems the appropriate measures to make it possible for the IP addresses provided by the plaintiffs, in which the illegal broadcast of protected audiovisual content has been verified, to become inaccessible from Spain.”
VPN providers as part of the problem. These orders, they say in LaLiga, “recognize that VPN service providers are technological intermediaries” that are within the application of the European Digital Services regulations, and therefore must prevent infringements from being committed through their infrastructures. The proceedings also highlight that VPNs are an “extremely effective and accessible means of generating the possibility of access to content that is not accessible in certain geographic locations.” Javier Tebas, president of LaLiga, I already pointed out recently to the objective of imposing its demands on VPN providers.
And on top of that take advantage of that activity. According to the documents cited by LaLiga, these VPN service providers not only facilitate access to geographically restricted content, but also actively advertise this ability to bypass the massive IP blocks ordered by LaLiga. According to the judge, these campaigns “distort the real location” and contribute to avoiding the restrictions already decreed by other courts.
Unheard of part. That legal term sounds complex, but its meaning is quite direct. It literally means “without hearing the other party.” We are – if the orders are confirmed, to which we insist, we have not had access – facing a unilateral resolution. The normal thing is that the other party can defend itself, but we are facing a (another) legal exception reserved for emergency situations that they have taken advantage of in LaLiga for their policies of massive and indiscriminate blockades, regardless of the damage to third parties.
NordVPN and ProtonVPN may oppose each other. In LaLiga they talk that we are facing precautionary measures, something also important because with them we do not have a final sentence. The affected companies have the right to oppose these measures once they have been notified to try to have the judge revoke them after hearing their arguments. Even so, LaLiga also indicates that the measures are for “immediate implementation”, which leaves these companies in a difficult defensive position.
What ProtonVPN says. A company spokesperson has indicated in comments to Xataka Móvil that they were “not aware of any proceedings that may be underway” before the information came out. Likewise, it states that any court order issued “without due notification to the affected parties” would be “invalid from a procedural point of view.” They want the opportunity to present their case before a binding ruling is made.
What NordVPN says. At Xataka we have contacted those responsible for NordVPN to clarify the matter. At the moment we have not received a response, but we will expand this information if we obtain new information.
AND the tests, what? LaLiga also indicates that the orders oblige LaLiga and Telefónica to “preserve sufficient digital evidence of the illicit broadcast of the protected content” to notify the defendants. This requirement is a measure to legally ensure that the IPs that are ordered to be blocked were actually being used for these illegal broadcasts.
They are not Spanish companies. There is some uncertainty here about whether these companies, which have headquarters outside the EU (like Panama in the case of NordVPN), will comply with an order from a Spanish court of first instance. If they don’t, national operators could be forced to block those VPN providers’ own nodes, but this is an even more drastic and terrible scenario: under the current announcement, users can continue using NordVPN and ProtonVPN normally for everything, but they will be just as affected by the blocks as if they were not using those VPNs. If this other measure were applied, it would not be possible to access these providers conventionally in Spain.
VPNs filtering content? If they have to comply with these regulations, VPNs could become dangerous intermediaries for all the content that is transferred through their services. Many users take advantage of the layer of privacy these VPNs offer for teleworking and secure connections, but if VPNs agree to filter content, users could lose critical network access tools.
What LaLiga says is one thing, what NordVPN and ProtonVPN do is another.. This entire process is still at an uncertain moment, because no matter how much LaLiga has achieved such privileges, it remains to be seen whether these suppliers will comply with these decisions. So, we will see how these suppliers respond to these demands.
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