Geoblocking and 'The Diary of Anne Frank': A Digital Border Conflict

It is one of the most widely read books in the world, one of the most important historical testimonies of the Holocaust, and has even been part of UNESCO’s World Heritage since 2009. The Diary of Anne Frank undoubtedly belongs among the works of world literature. Yet precisely because of its extraordinary historical and social significance, the question arises as to how the diary should be handled in the digital age. The interest in making the diary accessible to as many people as possible for educational and informational purposes conflicts with the copyright claims of the copyrright holders, who, for their part, wish to ensure the continued research, preservation, and publication of the work. 

1. Copyright Background

The version of the diary published in 1947 by Anne Frank’s surviving father, Otto Frank, under the title “Das Hinterhaus” has been in the public domain since late 2015. In 1986, however, a historical-critical complete edition containing previously unpublished text passages was published by the Anne Frank Fonds, founded by Otto Frank. This is a so-called “posthumous work” (also “editio princeps”), which in Germany enjoys a term of protection of 25 years under ancillary copyright pursuant to Section 71(3) of the German Copyright Act (UrhG). The same applies to numerous other European countries, such as Austria and Belgium. There, pursuant to the country-of-protection principle set forth in Article 8 of the Rom II Regulation—which stipulates that the law of the country for whose territory protection is claimed shall apply—the publisher can no longer assert license claims or claims for an injunction. Dutch copyright law, on the other hand, provides for a term of protection of 50 years from publication in comparable cases, i.e., until the end of 2036. 

2. Legal Dispute Before the ECJ

This territorial divergence and the associated differences in the scope of rights to the complete edition of The Diary of Anne Frank have already been the subject of several legal disputes. Following a request for a preliminary ruling from the Hoge Raad—the highest Dutch court—this issue is now even before the European Court of Justice. At the center of the matter is the Dutch Anne-Frank-Foundation. The Foundation holds the original manuscripts on permanent loan from the Dutch state and, together with various academic institutions as a Dutch-Belgian research consortium, offers a curated online edition on its website hosted in Belgium. Aware of the divergent copyright situations, the Foundation restricted access to its website to countries where the diary is no longer protected. This is made possible by so-called geoblocking, in which access to internet content is restricted based on the user’s geographic location (via IP address). 

The Anne Frank Fonds nevertheless considered its copyrights to have been infringed because the restrictions can be bypassed using Virtual Private Networks (VPNs). A VPN connection serves to establish a secure (encrypted) connection between two endpoints. A VPN server conceals the user’s actual location and online identity from third parties, as the VPN server identifies itself to the third party in place of the user: The VPN routes internet traffic to a server abroad selected by the user, thereby creating the appearance that access to a website is occurring from that location. Accordingly, VPN services are often used to bypass geoblocking measures and, for example, access the American Netflix library, even though the user is physically located in Germany.

The use of VPN services does not require above-average technical skills. With just a few clicks, a browser extension can be installed, allowing Dutch users to easily simulate access to the Anne-Frank-Foundation’s website from Belgium and thereby bypass geoblocking measures. 

3. Public Communication Despite Geoblocking?

At the heart of the legal dispute between the Anne Frank Foundation and the Anne Frank Fonds is the question of whether, despite geoblocking, a communication to the public of the protected complete edition within the meaning of Article 3 of the Copyright Directive 2001/29 (Infosoc Directive) has taken place. The Amsterdam courts had deemed the technical measures on the website at issue to be sufficient and therefore dismissed the Anne Frank Fonds’s claims for injunctive relief. 

The resolution of this issue has far-reaching consequences. Copyright law is fundamentally territorial in nature. License agreements are typically concluded for individual countries or territories, which compels streaming providers and other digital platforms to implement geoblocking measures. This practice enables rights holders to market their works in different countries with varying prices and terms. However, the internet, in principle, knows no national borders. If geoblocking is subsequently regarded as sufficient exclusion of the public, a rights holder is left virtually unprotected due to the relatively simple means of circumvention via VPN. On the other hand, in the opposite case, the protection of a work from a single territory could be enforced de facto worldwide. The copyright concept of the public domain would thus be completely undermined.

Furthermore, the decision also addresses the issue of how to handle historical sources, particularly those of political relevance. The Anne Frank Fonds argues that it seeks to preserve the financial basis of its activities through the protection of its copyrights. On the other hand, the Anne-Frank-Foundation views ensuring the widest possible access to Anne Frank’s work as an important educational mission. 

4. Opinion of the Advocate General

Advocate General Rantos ultimately concurred with the Dutch courts, stating in his Opinion of January 15, 2026 (C-788/24 – Anne Frank Fonds) that the mere fact that technical means of circumventing geoblocking exist was insufficient to presume an illegal communication to the public. Not every publication on the internet was automatically directed at the public of every single Member State. If a provider implemented effective technical measures such as geoblocking, this clearly demonstrated their intention to serve the relevant territory. He further noted that any protective measures, both in the real and in the virtual world, could be circumvented by savvy users. Absolute security could not be achieved; it was merely necessary to increase the reliability of the protective measure as much as possible. 

The fact that users circumvent a geoblocking measure introduced to restrict access to a protected work could not, therefore, automatically mean that the entity that introduced the geoblocking was making that work publicly available in a territory where access to it should in fact have been blocked. He added that such an interpretation would make it impossible to manage copyright on the internet on a territorial basis and would result in every public communication on the internet being global.

Furthermore, the Advocate General is of the view that VPN service providers could not be held liable for the conduct of their users if the latter actively bypass technical barriers to access protected content. Joint liability would only be considered if the VPN provider explicitly promoted or incited such circumvention. 

5. Outlook on the ECJ’s Decision

The Advocate General’s opinions are not binding on the European Court of Justice, although the Court follows them in the majority of cases. The final decision is expected by June 2026. If the Court agrees with the Advocate General’s opinion, this is likely to significantly strengthen geoblocking as a (copyright) legal protection tool. Otherwise, a fundamental reassessment of the digital framework for protected content in Europe would likely be required. 

We will keep you updated on further developments in this and similar cases on our blog!