CJEU clarifies when geo-blocking limits online copyright liability

CJEU clarifies when geo-blocking limits online copyright liability 

On 9 July 2026, in case C-788/24, the Court of Justice of the European Union (CJEU) ruled that publishing a work online does not constitute communication to the public in a Member State where the work is still protected by copyright, as long as access from that territory is restricted by an effective geo-blocking measure. This measure can still be considered effective, even though users can bypass it using a virtual private network (VPN) or similar service. 

The case concerned an online scientific edition of Anne Frank’s manuscripts. In the Netherlands, parts of these works are still protected by copyright until 2037. However, copyright has expired in other Member States, including Belgium, where the works are in the public domain. 

In September 2021, the Anne Frank Foundation (Anne Frank Stichting), in collaboration with the Royal Netherlands Academy of Arts and Sciences and the Association for Research and Access to Historical Texts, made the scientific edition available free of charge on a Belgian website. The website used geo-blocking to prevent access from countries where the manuscripts are still protected by copyright. Users connecting from the Netherlands were sent a message informing them that the website was unavailable in their country due to copyright restrictions. Those connecting from countries where the works were in the public domain were also asked to confirm this. 

The Anne Frank Fonds, which holds the copyright for these works, argued that this publication infringed its exclusive right to communicate the manuscripts to the public in the Netherlands. The organisation also claimed that Dutch users could still access the website by using a VPN to conceal their location. However, the Dutch courts rejected an application for interim measures because the organisations responsible for the website had taken reasonable steps to prevent or discourage access from the Netherlands. The Anne Frank Fonds appealed to the Supreme Court of the Netherlands, which referred the case to the CJEU to determine whether the availability of VPN services meant that the manuscripts had nevertheless been communicated to the Dutch public. 

According to Article 3(1) of Directive 2001/29, authors have the exclusive right to authorise or prohibit the communication of their works to the public. This concept requires both an act of communication and communication to the public. 

First, the CJEU pointed out that individuals publishing works online must consider the territorial scope of copyright. If a work is in the public domain in some Member States but still protected in others, publishers must ensure it is only accessible from territories where copyright has expired. Without access restrictions, publishing the work on an openly accessible website would make it available to all internet users, including those in Member States where protection continues. 

Effective technological measures can demonstrate a publisher's intention to limit their communication's audience. In this case, geo-blocking based on the user’s Internet Protocol (IP) address was a technological measure because it was designed to allow or prevent access according to the user’s geographical location. However, the measure does not have to be completely effective. When deciding whether a measure is suitable and proportionate, the national court must consider factors such as the available technology, the possibility of circumvention, and the costs of different measures. The court must also balance the need for copyright protection with the need for freedom of expression and access to information. 

Furthermore, the CJEU noted that a geo-blocking system may qualify as effective if it is state of the art and generally prevents access from the protected territory. The fact that some users may bypass it through a VPN does not render the measure ineffective in itself. Requiring a system that could never be circumvented would make it difficult to provide free access in countries where the work has entered the public domain and would give copyright protection an excessively broad territorial effect. In contrast, the additional declaration displayed on the website was not an effective technological measure. Its effectiveness depended entirely on the honesty of the user and did not itself prevent access from a protected territory. 

Lastly, the CJEU addressed the issue of responsibility in cases where geo-blocking is ineffective. In such cases, responsibility lies with the person who uploaded the work. This cannot be attributed to the VPN provider merely because its service allowed a user to circumvent the restriction. Therefore, the Court concluded that VPN services are lawful technical tools, and that their providers do not themselves give users access to protected works. Now, the Supreme Court of the Netherlands must determine whether the geo-blocking used by the website was state of the art and effective in practice. If so, the intended audience would not have included Dutch users, and no communication would have been made to the public in the Netherlands.