Geo-Blocking, VPNs and Territorial Reach – the CJEU’s Ruling in Anne Frank Fonds v Anne Frank Stichting

On 9 July 2026 the Court of Justice of the European Union delivered its judgment in Case C-788/24, Anne Frank Fonds v Anne Frank Stichting — a decision with the potential to have significant ramifications for rightsholders, publishers, and online platform operators alike. 

The key legal issue referred to the CJEU was: ‘If a work is in the public domain in one EU Member State but protected by copyright in another, can it lawfully be published online in the EU with geo-blocking to restrict access by those in the latter territory?’. The CJEU’s answer is yes — provided the geo-blocking is “effective” and “state of the art”. The mere possibility of circumvention via a VPN does not, on its own, render the geo-blocking inadequate.

The facts

The Diary of Anne Frank has, for the purposes of copyright law, entered the public domain in Belgium and several other EU Member States, but remains protected in the Netherlands until 2037. In 2021, a scholarly edition of the Diary was published on a Belgian-registered website, with geo-blocking put in place to prevent Dutch users from accessing it. The Anne Frank Fonds — the copyright holder — sued for copyright infringement, arguing that the publication constituted an unauthorised “communication to the public” in the Netherlands under Article 3(1) of Directive 2001/29/EC, because the geo-block could be circumvented using a VPN.

The Dutch Supreme Court referred three questions to the CJEU:

1. Is Article 3(1) to be interpreted as meaning that the online publication of a work is only to be regarded as a communication to the public in a particular country if the publication is addressed to the public in that country?
    
2. Can there be a communication to the public in a particular country if, by means of ( state-of-the-art) geo-blocking, it is ensured that the website on which the work is published can only be accessed by the public in that country by circumventing the blocking measure using a VPN or similar service?
    
3. If the possibility of circumventing the blocking measure entails the communication of the work published on the internet to the public in the blocked country within the meaning of Article 3(1), is that communication made by the publishing party, even though knowledge of that communication requires the intervention of the VPN?

The CJEU’s findings

1. No “communication to the public” where effective geo-blocking deployed: Where a publisher deploys effective, “state of the art” geo-blocking, there is no communication to the public in the blocked Member State under Article 3(1) – notwithstanding the possibility of VPN circumvention. The use of geo-blocking expresses the publisher’s intention to appropriately confine its audience. The Court drew on its earlier reasoning in VG Bild-Kunst (C-392/19), applying by analogy the role of technological measures in defining the intended public, but ultimately stated that it was for the referring Dutch court to decide whether the geo-blocking in this case was indeed “effective”.

2. The need for proportionality: The Court stressed that a fair balance must be struck between copyright protection and the freedom of expression and information of users. To require absolute, circumvention-proof measures—such as login systems or library-terminal access—would disproportionately impede free access to public domain works in other Member States and give copyright “excessive territorial scope”.

3. Responsibility sits with the publisher, not the VPN provider: If the geo-blocking measures put in place are found to be ineffective, the responsibility for the resulting communication to the public sits with the publisher — and not to the VPN provider. The latter merely offers to the public a lawful technical tool and does not play an “indispensable role” in the act of communication (which is consistent with the judgments of the CJEU in the Cyando and Ocilion cases).

Key takeaway points

• Perfection is not the standard: The CJEU’s proportionality-based assessment of “effectiveness” is in contrast to any possible absolutist reading of the technological measures provisions. For industry professionals, this means that a measure which is industry-standard and fit-for-purpose will likely suffice—even where technically savvy users can work around it. The key question is not whether the measure can be defeated, but whether it represents a proportionate and state-of-the-art means of restricting access.
   
• Self-declaration pages are not effective: Whilst the CJEU will ultimately defer to the referring Dutch court as to whether the measures in concern were “effective”, and each individual case will be judged on its own specific facts, the CJEU did state that a system which simply asks users to declare that they are accessing from a public-domain country does not meet the requisite threshold, since it relies entirely on the user’s honesty.
   
• VPN providers breathe easier—but publishers beware: VPN providers will welcome the CJEU’s confirmation that they are not liable for facilitating access. However, the Court’s decision should cause publishers to take careful note: if their chosen geo-blocking measure falls short and/or is not “state of the art,” the resulting infringement rests squarely on their shoulders. This should result in a premium being placed on maintaining and updating technical measures over time, as technology evolves and develops.

Looking ahead – the pending Like Company CJEU referral

The CJEU’s judgment in Anne Frank Fonds comes at an interesting moment, given the pending Like Company case also before the CJEU. Although the focus of that case is more shifted towards determining if the training of ‘large language models’ involves acts of reproduction, and the possible liability of AI service providers for outputs generated in response to individual user prompts, it also raises questions about the issue of communication to the public in a cross-border digital environment.

The Court’s emphasis in Anne Frank Fonds may prove influential in the identification of the audience reached by an AI tool’s output. The most foreseeable consequence is therefore a granular inquiry into the system’s architecture, territorial availability, the scope of any consent, the publisher’s technical rights reservations and the precise acts performed during the training, retrieval and output stages. Anne Frank Fonds may assist only at the margins – for example, in identifying the territorially relevant audience at the output stage.