Anne Frank Diaries: ECJ strengthens geoblocking despite VPN circumvention

The international copyright status of the world-famous diary of Anne Frank has been fiercely debated for years and has also caused problems for Wikipedia operators. In countries like Germany, Belgium, or Austria, the work has been in the public domain since 2016. However, the Anne Frank Fund, based in Switzerland, insists that copyrights in the Netherlands will continue to exist until 2037 due to special transitional regulations. This territorial conflict has escalated in the digital age and is now occupying the European Court of Justice (ECJ).

The bone of contention: The Dutch Anne Frank Foundation, which holds the original writings on permanent loan from the Dutch state, has published an online edition of the Frank manuscripts together with scientific academies. The organization technically blocked this via geoblocking for the Dutch market to comply with the claims of the Swiss Anne Frank Fund. Nevertheless, the fund sees its rights violated because the blocks could be circumvented using Virtual Private Networks (VPNs).

ECJ Advocate General Athanasios Rantos has now elaborated in his conclusions of Thursday in case C-788/24 that the mere existence of technical circumvention possibilities is not sufficient to construct an illegal "public communication" by the hoster in a blocked country. According to the rapporteur, a publication on the internet is not automatically directed at the audience of each individual member state.

How dense do digital fences need to be?

If a provider takes effective technical measures such as geoblocking and supplements them with additional notices or confirmation requests, Rantos argues that this clearly shows: they do not intend to serve the respective territory. Such measures have a deterrent effect that carries legal weight, even if they can be circumvented by sophisticated users.

Rantos is also of the opinion that VPN service providers cannot be held liable for the behavior of their users if they actively bypass technical hurdles to access protected content. Joint responsibility would only be considered if the VPN provider explicitly promotes or incites circumvention. With this, the Advocate General rejects attempts to unilaterally shift responsibility for copyright infringements onto infrastructure operators or publishers abroad. Instead, a fair balance must be maintained between the protection of intellectual property and freedom of information without imposing unreasonable verification obligations on the operators.

This signal is important for the digital economy in Europe. Experts such as lawyer Patric Mau from the Cologne-based law firm Oppenhoft point out that a contrary interpretation would have shaken the cornerstones of cross-border licenses. Large streaming platforms and sports rights distributors, whose business model is based on territorially limited exclusive rights, are likely to note the statements from Luxembourg with relief. If the mere circumvention of a block were already considered a breach of law by the provider, the legal predictability for almost all international online services would be at stake.

Advocates General's conclusions are not binding on the ECJ. However, in most cases, the judges follow them. Their ruling in the Frank case is expected in a few months. Should the judges follow Rantos' line, it would solidify the effectiveness of geoblocking as an instrument for territorial rights management in the digital internal market. The proceedings concerning Anne Frank's legacy are precedents. At its core, it is about the question of how dense digital fences in Europe must be so that copyright and licenses do not become void.

(ds)