ACTA 'May Interfere With Fundamental Freedoms' — EU Data Protection Supervisor
from the reading-between-the-lines dept
The dramatic announcement that the EU’s rapporteur on ACTA, David Martin, would be recommending that the European Parliament should reject the treaty was made at the end of a morning conference on the subject organized by Socialists and Democrats in the European Parliament. One of those speaking in favor of ACTA at that meeting was Helienne Lindvall, a professional songwriter and musician, who has now blogged about it:
I was told to prepare a five-minute speech, so apart from speaking of the reality musicians are facing, I spent days reading the actual agreement, different points of views on it, as well as looking into the different issues it deals with, to make sure I knew what was being discussed. I’d heard from the Pirate party as well as some other action groups that it would impede freedom of speech so naturally I was concerned — after all, musicians rely on freedom of expression, as do journalists. I was surprised to find that Acta would do nothing of the sort.
That’s curious, since Amnesty International does indeed see ACTA as a threat to freedom of speech — and much else:
Amnesty International believes the pact’s content, process, and institutional structure impact in a number of ways on human rights — especially the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.
Part of the problem is that ACTA was intentionally drawn up to be as vague as possible. That can be seen in the fact that its negotiators chose to use terms that have no meaning in the context of international treaties:
Amnesty International is also gravely concerned about the ACTA’s vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as “fundamental principles” and even invents a concept of “fair process”, which currently has no definition in international law.
“Worryingly, ACTA’s text does not even contain references to safeguards like ‘fundamental rights’, ‘fair use’ or ‘due process’, which are universally understood and clearly defined in international law,” said Widney Brown.
The EU’s own European Data Protection Supervisor (EDPS), which is “an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies”, has just released a second opinion on ACTA (pdf) (the first dates back to 2010, and was equally critical). It concurs with Amnesty International’s view of the treaty’s worrying vagueness in the area of human rights:
At international level, freedom of expression and privacy are recognised as fundamental rights in the Universal Declaration of Human Rights, and not as mere ‘principles’. Furthermore, the notion of ‘fair process’ does not correspond to any generally recognised human right.
The latest EDPS report is mainly concerned with ACTA’s problems from the point of view of privacy, where it concludes:
Many of the measures envisaged in the Agreement in the context of enforcement of IP rights in the digital environment would involve the monitoring of users’ behaviour and of their electronic communications on the Internet. These measures are highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms to, inter alia, privacy, data protection and the confidentiality of their communications.
But the report does touch on the issue of freedom of speech when it analyzes the effects of ACTA’s “Enforcement cooperation mechanisms and the monitoring of Internet by ISPs”:
These forms of enforcement cooperation mechanisms which entail the processing by ISPs of personal data for the purpose of IP rights enforcement and/or the monitoring of individuals’ behaviour, including electronic communications, on a large scale raise serious concerns from a privacy and data protection perspective. They furthermore may lead to the disconnection of Internet access or the blocking of websites, which may interfere with fundamental freedoms such as the freedom of expression, the freedom to receive or impart information and access to culture.
ACTA threatens free speech largely because of the following, apparently innocuous, sentence:
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
As the EDPS points out, “a mere reference to these principles [freedom of expression, fair process, and privacy] is not enough.” What counts is what would happen in practice. And the practice — and the problem — is that ACTA would encourage signatories to move to “co-operative” approaches already being deployed by some countries, with a presumption of guilt rather than innocence:
These include various forms of voluntary enforcement cooperation mechanisms, such as three strikes mechanisms, blocking and filtering of peer to peer traffic, or the blocking of websites allegedly infringing copyrights.
Clearly, all of those mechanisms mentioned by the EDPS “would impede freedom of speech” hugely, just as the Pirate party and others have suggested. The threat of ACTA is not just the laws that it will bring in, but the extra-judicial actions that it will encourage beyond the law.