02.02.2012 Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) withthe European Convention on Human Rights & the EU Charter of Fundamental Rights
ACTA was negotiated in unwarranted secrecy, without adequate input from civil society or parliamentarians, but in close cooperation with major IP right holders. Not surprisingly, this resulted in a text that gives disproportionate protection to big business; fails to level the playing field between developed and developing nations in international trade relations; hampers innovation (especially by SMEs); fails to promote grassroots culture; and could impede the dissemination of knowledge for people across the world (and access to health care and generic medicines).
Human rights were effective ignored, apart from the inclusion in the Agreement of vague and ineffective “without prejudice” clauses that fail to redress the balance, and are little more than fig-leaves. The inclusion of a detailed provision on the need to respect human rights in the protection of IPR, on the lines of the “138 Amendment” to Directive 2002/21/EC, was rejected as “not needed”.
This was wrong. Our analysis shows that ACTA, as currently drafted, seriously threatens fundamental rights in the EU and in other countries, at various levels. Specifically:
THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:
1. Re Application of ACTA to trivial or small-scale, not-for-profit technical infringements of IP rights, and to the dissemination of IP-protected information without the agreement of the right holder where this is justified on higher public interest grounds:
• Article 23 ACTA requires State parties to lower the criminal threshold for IPR infringements, and to widen the scope of the criminal offences, without a de minimis exception;
• Without such an exception and/or similar exceptions on the lines of the U.S. “fair use” and “fair comment” rules, IPR enforcement will disproportionately restrict the freedom to seek, receive and impart information and ideas;
• Since a de minimis exception can be seen as a limitation on procedural matters rather than on the substance of IP rights, this is not remedied by the fact that ACTA allows States to retain substantive exceptions to IP law;
• In our opinion, an explicit de minimis rule and an explicit public interest defence are the minimum that are required to bring Article 23 in accordance with the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR).
1. Re Application of ACTA to evasion of Digital Rights Management systems:
• ACTA too easily assumes that right holders’ rights always trump user rights, that right holders can impose whatever kinds of DRM restrictions they like, and that these are always lawful in terms of contract- and consumer law, no matter how draconian.
• In our opinion, in specific contexts, this will not be right, and this approach therefore unduly and disproportionally restricts access to information, or the free dissemination of information, in violation of Article 10 ECHR and Article 11 CFR.
1. Re “Three strikes” and extended ISP liability:
• the revised, final text of Article 27.1 – 3. ACTA no longer requires States to adopt the kind of draconian measures - excessive ISP liability, “three strike” rules, etc. - that were clearly originally in the minds of the drafters, and that the European Data Protection Superviser (EDPS) has shown to be clearly incompatible with European human rights and data protection law;
• However, it still suffers from some of the same defects as the “criminal enforcement” provision mentioned above. Article 27 is still excessively vague; it encourages non-EU States to adopt such human rights-unfriendly measures in support of mainly U.S. and EU corporations, who could not rely on such measures in their own regions; and it could still be misread or misconstrued by EU States to adopt such measures.
• In our opinion, without clear stipulations that require States that sign up to the Agreement not to allow private-sector-imposed “three strike” rules and not to impose excessive ISP liability in respect of IPR infringements, ACTA fails to ensure that it will be applied (by EU and non-EU States) in accordance with European and international human rights standards.
THE RIGHT TO PROTECTION OF PERSONAL DATA:
• Articles 11 and 27(4) allow for the following:
• the surreptitious monitoring of the Internet use of millions of individuals without any concrete suspicion of illegality, and the systematic recording and analyses of information on their Internet use;
• the disclosure of the information gleaned from such surveillance to right holders, even though it may be wildly unreliable as an indicator of illegality, without any real safeguards to ensure that only information is disclosed which seriously suggests widespread infringement by identified individuals;
• on the basis of completely unclear standards (essentially, mere claims by right holders);
• by judicial and “other” authorities, i.e. also by authorities that are neither independent nor impartial in these respects;
• across borders, including from EU Member States with strict data protection laws to non-EU Member States with “inadequate” data protection laws (or no data protection laws at all) ; and
• in proceedings to which the individuals do not have access, and in which they are not heard (inaudita altera parte).
• The above-mentioned suspicionless monitoring and disclosures of unreliable but sensitive personal data are incompatible with European human rights and data protection law, except under very stringent conditions, as outlined in our Opinion with reference to the Opinion of the EDPS, which include:
• limiting such monitoring to “clear” cases of “major IPR infringements”, and even then only subject to a “prior check” by the relevant national data protection authority;
• limiting transborder disclosures to right holders and law enforcement agencies in non-EU countries that ensure “adequate” protection of the received data, but in either case again only subject to such a “prior check”;
• imposing serious checks on the validity of non-EU personal data disclosure orders, and on assurances of limiting the use of the data by the non-EU recipient to the purpose of the disclosure (which is not properly ensured by ACTA, in spite of phrases suggesting this).
• In our opinion, the absence of such stringent conditions in ACTA means that the Agreement in these respects is incompatible with the ECHR, the CFR, and European data protection rules.
FAIR TRIAL/DUE PROCESS ISSUES RELATED TO OTHER FUNDAMENTAL RIGHTS:
1. Re Criminal law enforcement of IPR under ACTA:
• In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.
1. Re Civil-law enforcement of IPR under ACTA (including injunctions, provisional measures, and the awarding of damages):
• In our opinion, without clear provisions stressing that injunctions should be the exception, and inaudita proceedings the high exception, and that for both, there must be strong counterbalancing safeguards to preserve the “equality of arms” in IPR enforcement proceedings, ACTA is incompatible with the “fair trial” guarantees in the ECHR and the CFR.
1. Re “Privatisation” of IPR law under ACTA
• Rather than contributing to the upholding of freedom of expression and due process rights by the dominant, private-sector players on the Internet, ACTA erodes the development of the Rule of Law in that realm. It encourages the regulation of human rights-sensitive matters by private entities, outside the formal frameworks, and without ensuring compliance with “off-line” human rights standards.
• This “privatisation” of the IPR regime therefore, in effect, deprives individuals from their right to have crucial issues of Internet freedom properly adjudicated in proceedings that meet all the requirements of Article 6 ECHR/Article 47 CFR.
Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.
This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and standards.
Douwe Korff & Ian Brown
8 October 2011