Can a website be considered accessible in a country when Internet users must use a VPN to bypass its geoblocking? Seized by the Supreme Court of the Netherlands with the question of cross-border counterfeiting, the Court of Justice of the European Union has just answered the question with a judgment of July 9, 2026.
Otto Frank, who published his daughter’s writings in 1947, created the Anne Frank Fonds in Basel in 1963, which he designated as his universal heir and which has held the rights to the work since his death. Due to territoriality rules, Anne Frank’s work is protected by copyright in the Netherlands until 2037 but may have entered the public domain in certain European states such as Belgium before then.
Also a Belgian site has published the manuscripts of the Diary of Anne Frank free of charge in an online scientific edition. But to respect the territoriality of copyright, the site has installed a restricted access measure – geoblocking – to prevent Dutch IP addresses from accessing the content. However, the Anne Frank Fonds foundation realized that this geoblocking could be circumvented by means of a VPN (virtual private network) or a comparable service. The foundation then held the publishers of the online publication liable for counterfeiting.
On July 9, 2026, the Court of Justice of the European Union ruled in favor of the publishers of the Belgian site by ruling that simple indirect technical accessibility – via a VPN – does not mean that the publisher of the work addresses or targets the public of the Member State where the content is protected. By installing a geoblocking measure accompanied by an explicit warning, the publisher expressly indicated its intention not to communicate the work to the public in the Netherlands.
Consequently, if an operator implements technical measures intended to restrict geographic access to comply with territorial copyright, it fulfills its legal obligations. Therefore the user who voluntarily bypasses a VPN falls into violation of the conditions of access, and not the publisher of the site which materialized the digital border. Conversely, in the event of technically ineffective geoblocking, responsibility would fall on the person who posted the work online, and not on the provider of the VPN used to circumvent the blocking.
The judgment illustrates the differences in duration of protection which may still persist between Member States for certain works, in particular due to national transitional provisions. Also the position of the European court provides legal security for cultural institutions and researchers. In fact, the ruling allows the digitization and posting online of heritage works in countries where they have fallen into the public domain without those responsible being able to be prosecuted for cross-border counterfeiting in a neighboring state provided they have implemented adequate geoblocking measures.
