Targeting the Right Question: What AG Rantos Left Open in Anne Frank Fonds

On 15 January 2026, Advocate General Rantos delivered his Opinion in Anne Frank Fonds (C-788/24), a reference from the Dutch Supreme Court. It puts a familiar problem back before the Court of Justice: how a territorially defined right of communication to the public plays out on the internet where everything is reachable from everywhere. In the case, a scholarly edition of Anne Frank’s manuscripts, still protected in the Netherlands until the end of 2036 but in the public domain elsewhere, was published in original Dutch yet on a Belgian website that excluded Dutch users through state-of-the-art geoblocking and an additional access check. Because users could nonetheless reach the site through a VPN, the rightholder argued that a communication to the public was taking place in the Netherlands after all.

The Opinion arrives at a defensible outcome: Effective geoblocking keeps the publication outside of Article 3(1) InfoSoc Directive in the blocked territory and the mere possibility of VPN circumvention does not alter that. Earlier commentary on this blog has set out the reasoning in detail and largely welcomed it. The purpose of this post is narrower: to draw attention to a question the referral raised yet the Advocate General did not really answer, namely whether the location of a communication to the public depends on the publication being targeted at the public in the state concerned. That omission is significant because the Court has consistently relied on exactly such a targeting test in adjacent areas.

A Central Question, Answered in a Footnote

The first question from the Hoge Raad was whether a communication to the public presupposes that the publication is addressed to the public in the relevant state. The Advocate General answers in the negative. He recites the established two-element test – an act of communication and a public – and concludes that, since the manuscript would not have been accessible to the online public without the defendants’ intervention, an act of communication took place (para. 22-24). The question of targeting is then resolved in a footnote: What matters is that a sufficient number of persons can access the work, irrespective of where those persons are located (fn. 20 to para. 20).

For a question that the referring court considered central, this is surprisingly thin. It also stands in contrast with the Court’s broader case law. To locate an infringing act, the Court of Justice has repeatedly asked whether the activity was directed at the relevant territory: in trademark law (L'Oréal/eBay, para. 64), for the sui generis database right (Football Dataco/Sportradar, para. 34-43), for copyright’s own distribution right (Dimensione Direct Sales/Knoll, para. 30-33) and the right of communication to the public under Article 8(2) of the Rental and Lending Right Directive (RAAP, para. 59). National courts have taken the same view, the German Federal Court of Justice most recently in Produktfotografien (para. 23).

Targeting Everywhere But Here?

The Opinion does not explain why Article 3(1) of the InfoSoc Directive should stand apart from this line. The objection that mere online accessibility alone can already cause harm does not distinguish the right of communication to the public, since the same is true of the database right and the distribution right. In Football Dataco, for example, the Court explicitly took the harm through the ubiquitous availability of content online into account (para. 35). And in Dimensione Direct Sales, it saw the distribution right infringed upon already by an advertisement even where no consequential sale to an EU buyer was ever shown (para. 28, 32). Yet, in both cases the Court still located the infringement by where the websites were directed rather than by their mere accessibility.

The authorities invoked by the Advocate General also do not support a special treatment of the right of communication to the public. In VCAST, it was precisely relevant which concrete persons were targeted by the communication in question (para. 47-50). And Mircom concerned peer-to-peer filesharing, where no question of geographic or audience-specific targeting was ever at issue. The Court therefore had no occasion to consider the territorial reach of a communication.

An Obligation to Rebuild Offline Borders Online

The Advocate General does eventually narrow the large scope of the right of communication to the public but only at a second stage. Assuming that a communication to the public occurs wherever the content can be reached, he then removes the blocked territory by way of a carve-out: Only effective geoblocking ensures there is no communication there. It therefore becomes obligatory for anyone who wishes to use a work online in a way that is lawful in their home country but is subject to copyright in another Member State.

The Opinion does not really weigh the consequences: As this case shows, harmonization is imperfect. Therefore, the status of protection of a work is often unclear. Setting up geoblocking comes with costs that fall on users often unaware that their use is unlawful somewhere else – such as libraries, archives and museums dealing with material that is in the public domain where they sit. Cautious actors may simply choose not to put works online at all even though their use might not have any effect in another Member State.

Why Targeting is the Better Route

A targeting criterion in contrast reaches the same result but without these difficulties. If a communication is not targeted at a particular territory, it is unlikely to affect the public there – therefore there is no communication to the public in that state to begin with. This strikes a better balance between the interests of the rightholder and the user: If a user orients a use towards a certain public and therefore is likely to impact the rightholder’s interests in this territory, they can reasonably be expected to observe its rules.

Of course this makes enforcement somewhat more demanding for rightholders. However, this can often be easily managed through the objective criteria for determining whether an activity is directed at a territory, such as the presentation and language of the publication. Those same criteria also make it unlikely that a use will cause relevant harm in a Member State without being targeted at its public. And in the remaining cases, any residual harm is more effectively addressed through harmonisation than by expecting users to follow rights that apply elsewhere.

A targeting analysis also sits more comfortably within the Court’s own framework of Article 3(1) InfoSoc Directive than the geoblocking exception does. Where a communication is not directed at a certain territory, the user does not deliberately intervene in full knowledge of the consequences of its action to give users located there access to a protected work. The Advocate General instead relies on the “new public” criterion which covers a different situation: It asks whether a rightholder limited the original public of a communication, so that anyone later reaching a new public becomes liable. In the geoblocking scenario, however, it is users without rights who limit the public to avoid liability. The “new public” therefore would have to be reinterpreted to fit this setting.

What the Court Should Clarify

The Court of Justice now has an opportunity to settle how the right of communication to the public is to be located online, with implications well beyond VPNs and works whose protection ended unevenly across the EU. As long as terms of protection and exceptions continue to differ between Member States, the problem will persist. The Court is unlikely to take a stricter line than the Advocate General, not least because the defendants did everything that could reasonably be asked of them to respect the foreign right. The clarification worth hoping for is modest: a person who acts lawfully in their own home state should only have to deal with liability elsewhere once they direct their activity at the public there. Eventually, a more durable solution lies in harmonisation rather than in the expectation that users rebuild offline borders online.

Photo by Miikka Luotio on Unsplash