Targeting? Geoblocking? Something else?Advocate General on communication to the public via internet (Anne Frank)

As we’ve already discussed in an earlier blog, it isn’t always easy to determine whether the availability of copyright protected works constitutes a communication to the public that may require right holder consent. The question where such communication to the public takes place can be equally difficult to answer and is at the centre of a case currently pending before the CJEU (Case C-788/24 – Anne Frank, see AG opinion date 15 January 2026 here).

The case touches on a fundamental tension at the heart of cross-border copyright enforcement online: How to determine the territorial scope of a digital publication (and, consequently, the applicable law). The outcome of the CJEU proceedings might provide answers with relevance beyond copyright law and could practically impact how websites are designed.

The Facts: A Diary, a Domain, and Diverging Terms of Protection

The facts of the case are quickly summarized: Anne Frank's diary — one of the most widely read texts of the twentieth century — has entered the public domain in several countries (including Belgium) but remains protected in the Netherlands. While, in general, the term of copyright protection is harmonized across the EU by virtue of Directive 2006/116/EC, Member States could maintain longer protection terms, if protection was already running by 1 July 1995.

A Belgian non-profit organisation made the full text of Anne Frank’s diary available online. The page was geoblocked for the Netherlands, and visitors from other countries were asked to confirm (by selecting the country where they were located) that the diaries were already in the public domain. The right holders of Anne Frank’s diary (Anne Frank Fonds) considered this an infringement of their copyrights. 

The core question before the CJEU: Under what circumstances does making a work available on a website amount to a "communication to the public" within the meaning of Article 3(1) InfoSoc Directive (2001/29/EC) in a specific Member State — particularly one where the work is still protected?

Global copyright compliance or restricted approach?

At first glance, it may seem tempting to answer this question solely based on the accessibility of a website from a certain location. If a website is publicly accessible, it may seem straightforward to conclude that this constitutes a communication to the public. This would be consistent with EU case law on the question of establishing international jurisdiction for copyright. There, the CJEU has indeed already established that accessibility alone can be sufficient and that targeting on a specific EU Member State is not required (see, for instance: CJEU, Case C-441/13, para. 32 – Pez Hejduk/EnergieAgentur.NRW GmbH). 

However, the establishment of international jurisdiction based on accessibility does not automatically mean that there is also a copyright relevant use in every country where a work is (technically) accessible. Equating accessibility online with relevant use within the respective territory would come at a high price given that websites are generally globally accessible. If accessibility in itself would be sufficient to establish a communication to the public this would mean that compliance with all copyright laws worldwide needs to be ensured. This would already be an extremely difficult task for one individual work (after all, right holders and licensees, availability and scope of protection and applicable copyright exceptions differ between jurisdictions). At scale, global copyright clearance would de facto be impossible and there is broad consensus that an obligation to ensure “global compliance” with copyright law is not a feasible solution. Courts have tried to solve the problem by applying a narrower understanding of a communication to the public: Under this approach, a communication to the public only takes place in jurisdictions which are targeted by a given website. This solution has the clear benefit that it restricts the number of relevant jurisdictions and excludes territories, where the right holders’ interests are not really impaired beyond the mere accessibility of a website. However, determining whether a website is "directed at" a particular country is notoriously difficult:

• The language of a website is often helpful but only to a limited extent: A website in Germany may be relevant to Germany, Austria, Switzerland, Liechtenstein, parts of Belgium, Luxembourg, and Italy.
• Use of a country-specific top-level domain may also be relevant. However, some domains – like .org – are not country specific. Moreover, it is unsuitable as a standalone criterion, since it would otherwise be easy to manipulate.
• Selling of goods and services only to certain jurisdictions is a good and strong indicator, but it may be entirely absent from many websites, in particular in the copyright law context.
• If websites use geo-targeted advertising, this is also a strong indicator that the respective countries are targeted.

Therefore, these indicators are all imperfect proxies. A rigid "directing" test risks becoming either under-inclusive (making room for “circumvention” by avoiding country-specific markers) or over-inclusive (catching any website that happens to be generic enough and comprehensible to users in a protected jurisdiction).

Geoblocking as a solution

In the opinion in Case C-788/24, AG Rantos takes the position that “communication to the public” does not require “an act of publication of a work on a website to be addressed to the public in the country concerned”. The AG concludes that communication to the public should be understood in a broad sense. He further notes that, in this case, the publication of the diaries on the website “has offered an indeterminate number of persons the possibility of accessing protected documents which they did not have access to previously”.

The AG finds, however, that such communication to the public should not be assumed if the website operator adopts “effective technical measures […] such as geoblocking” to prevent access from certain countries. In such circumstances, it cannot be assumed that content is communicated to the public in the “geoblocked” countries. 

The AG acknowledges that geoblocking measures can, in principle, be relatively easily circumvented in particular by using VPN services. He notes, however, that geoblocking is currently the only mechanism capable of restricting access to a website on a territorial basis. If the mere possibility of circumventing geoblocks meant that content is communicated to the public globally, it would be impossible to manage copyright on the internet on a territorial basis. This would also mean that the country with the strictest copyright protection (or longest protection terms) would determine the global accessibility of content.

The AG further notes that additional measures intended to impede or discourage public access to the website in the blocked countries – while only secondary – can also be relevant to assess the “deterrent effect of all the measures in the public in that country”.

Targeting vs. Accessibility 

Superficially, the AG opinion introduces a clear distinction: It rejects an understanding that the “targeting” of a website is decisive in determining whether a communication to the public takes place and – instead – relies on technical accessibility. It also has a clear advantage compared to a complex targeting analysis: It is a clear, unambiguous, and objective criterion (either geoblocking is put in place or it isn’t).

However, upon closer inspection, the distinction between “targeting” and “technical barrier” is not as clear as it seems: As the AG expressly recognizes, geoblocking measures can be circumvented by users (which seems a factually sensible statement given the widespread adoption of VPN tools).

This means that, in practice, geoblocking does not prevent access from a given jurisdiction. What it does is arguably something different: it communicates the website operator's intent not to direct the content at users in that jurisdiction. Under this perspective, geoblocking works also as a targeting signal, which collapses the seemingly clear distinction between “targeting” and “access restrictions”. 

If that is the case it is, however, doubtful whether “geoblocking” should be the main (or: only) decisive factor in determining whether a communication to the public takes place. Several arguments clearly speak against this and favour a more holistic view:

• “Precautionary Geoblocking” fragments the Internet

  Today, many website operators make content available globally without deploying geoblocking measures. A “targeting” – based understanding of communication to the public limits the liability risks of this approach: The website operator (only) has to conduct copyright clearance for “targeted” jurisdictions, whereas the mere accessibility in other jurisdictions does not lead to a communication to the public. This allows website operators to “err on the side of accessibility”.

  If the CJEU were to adopt the AG’s opinion, the liability risk of this approach increases. Since accessibility alone would suffice, website operators would assume liability for global (or at least: EU-wide) copyright compliance, unless they implement a geoblock. The rational response for risk-averse website operators would be to geoblock by default and to only “unlock” jurisdictions for which clearance has been obtained. This may mean that content is rendered inaccessible in other jurisdictions even if it is not copyright infringing (for instance, because the protection period has lapsed or a copyright exception applies), thereby incentivising website operators to “err on the side of blocking”.

  This would be less problematic for content providers such as audio- and streaming services which already use geoblocking measures to restrict their offerings to specific markets. The negative consequences could, however, more heavily affect website operators which may not be equally well-equipped to navigate them: Individual bloggers, small cultural institutions, educational platforms, non-profit archives, and smaller websites in general. These operators typically lack the resources and legal expertise to conduct multi-jurisdictional copyright clearance. Faced with uncertainty, many could opt to geoblock broadly.

  One might object that website operators will simply continue their current practice and ignore the risk. But a legal framework that depends on non-compliance to avoid undesirable outcomes is hardly a convincing solution.

• Smaller Member States could be disproportionately affected

  This negative effect may also disproportionately affect smaller Member States: For a website operator, it may be economically rational to invest in copyright clearance for large markets such as Germany, France, Spain. But for smaller Member States — Malta, Luxembourg, Estonia — the cost of clearance may simply not be justified by the expected audience. If website operators chose to only “unlock” specific jurisdictions, it may be an economically reasonable choice to omit smaller jurisdictions. As a result, users in smaller Member States would systematically see less content, not because of any principled policy choice, but based on “precautionary geoblocking”.

• Geoblocking may become increasingly easy to circumvent

  While geoblocking can already be circumvented based on currently available technology, it seems plausible that the use of such technology will only increase in the future. There is likely already a divide between less tech-savvy (often: older) and more sophisticated (often: younger) users in this regard. This also means that geoblocking may develop to be even less of a technical barrier (and more of a targeting signal) in the future. It seems doubtful to tie a legal question – when does communication to the public in a country take place – to specific technological solutions which may become obsolete in the future.

A territorial fragmentation of the internet is – in itself – not desirable and goes against the very principle on which the internet is built. The fact that the fragmentation would particularly affect less tech-savvy users in smaller jurisdictions does not render the solution more convincing. In other contexts, the EU legislator has already demonstrated that geoblocking leads to a fragmentation of the internal market and is therefore not desirable: While the Geo-Blocking-Regulation (Regulation EU 2018/302) is not applicable to copyright-protected digital content, it highlights that EU policy generally disfavours geoblocking barriers between Member States.

It might therefore be preferable to adopt a more flexible approach: Why should a website operator be required to deploy a specific technical measure (which, as established, may not effectively prevent access) rather than being permitted to communicate the same message through other, potentially equally clear means?

Conclusion

The Anne Frank case confronts the CJEU with a genuinely difficult problem. The territorial nature of copyright does not sit comfortably with the borderless architecture of the internet. There must be some limiting principle to prevent every website from being subject to the copyright laws of every jurisdiction on earth: The idea of global copyright compliance is as unworkable as it is undesirable.

However, the answer should likely not be to mandate a single, technically circumventable tool and treat its absence as proof of targeting. Instead, it would make sense to adopt a flexible approach (based on a variety of targeting signals such as the website language, disclaimers, top-level domain, geoblocking, and others) to determine the countries in which content is communicated to the public. While such holistic analysis may not be as easy to administer as focussing purely on geoblocking, it may be essential to avoid significant negative consequences.