In Opinions delivered on 15 January 2026, the Court of Justice of the European Union, through its Advocate General Athanásios Rántos, addressed a key issue of EU copyright law in the digital environment: the scope of the concept of “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC, where protected content is published online subject to geo-blocking measures, yet remains technically accessible through the use of a virtual private network (VPN).
These Opinions were issued in Case C-788/24, following a request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), in proceedings opposing the Anne Frank Fonds to several cultural and academic institutions concerning the online publication of a scholarly edition of Anne Frank’s diary.
The dispute arose from the publication, on a publicly accessible website, of a scientific edition of the complete manuscripts of Anne Frank’s diary, including certain versions that remain protected by copyright in the Netherlands, while having entered the public domain in several other Member States.
In order to comply with the territorial nature of copyright protection, the defendant institutions implemented a state-of-the-art geo-blocking system, preventing access from countries where copyright protection subsists, together with additional deterrent measures, such as a user declaration confirming access from a public-domain country.
The Anne Frank Fonds nevertheless argued that these measures were insufficient, on the ground that users located in the Netherlands could still access the protected content by means of a VPN, thereby constituting an unauthorised communication to the public on Dutch territory.
The referring court asked the Court to clarify the interpretation of Article 3(1) of Directive 2001/29/EC, and in particular:
These questions required a careful balancing between the right to intellectual property, protected under Article 17(2) of the Charter of Fundamental Rights of the European Union, and the freedom of expression and information, guaranteed by Article 11 thereof.
In his Opinions, the Advocate General first recalls the Court’s settled case law according to which the concept of “communication to the public” requires an individualised assessment based on a set of interdependent criteria.
He then states, in particularly clear terms, that while the online publication of a work does not need to be specifically addressed to the public of a given Member State to constitute a communication to the public in principle, this general rule must be qualified where effective technical measures restricting territorial access have been implemented.
Accordingly, the Advocate General considers that the existence of effective geo-blocking measures, possibly supplemented by non-technical deterrent mechanisms, precludes the qualification of communication to the public in the blocked State, even if such measures may be circumvented by certain users through VPN services.
To hold otherwise would, in his view, undermine any form of territorial management of copyright on the Internet and impose on operators an impossible obligation of result, contrary to the principle ad impossibilia nemo tenetur.
As regards attribution, the Advocate General concludes that neither the website operator, having implemented appropriate and effective protective measures, nor VPN service providers may, in principle, be held liable for unlawful access carried out by users who deliberately circumvent those measures.
VPN services are characterised as technically neutral tools, the lawful or unlawful nature of whose use depends on user behaviour. Their mere availability is insufficient to establish an active role in the communication to the public, absent any deliberate encouragement of copyright infringement, which was not established in the present case.
Although not binding on the Court, these Opinions outline a structuring interpretative framework for future case law. They confirm the legal legitimacy of geo-blocking mechanisms as tools for territorial copyright management, provided that they are effective, regularly updated and proportionate.
For right holders, cultural institutions and digital publishers alike, this case underscores the importance of:
Conclusion
Through the Anne Frank case, the Advocate General of the CJEU proposes a balanced and pragmatic interpretation of the right of communication to the public in the age of VPNs and technological circumvention.
These Opinions reaffirm that copyright must enjoy a high level of protection, while recognising the technical realities of the Internet and avoiding the imposition of legally untenable obligations on cultural and academic actors engaged in online dissemination.
