[x-pubpol] A footnote to ACTA in Europe? The EDPS speaks

Mon Jul 23 10:36:13 PDT 2012

http://ipkitten.blogspot.co.uk/2012/07/a-footnote-to-acta-in-europe-edps-speaks.html
*

On Saturday the online version of the Official Journal* of the European
Union *published
<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:215:0007:0009:EN:PDF>
*an abridged version of the *[title begins here ...] *Executive summary of
the Opinion of the European Data Protection Supervisor on the proposal for
a Council decision on the conclusion of the Anti-Counterfeiting Trade
Agreement between the European Union and its Member States, Australia,
Canada, Japan, the Republic of Korea, the United Mexican States, the
Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss
Confederation and the United States of America *[... and ends here]*. Note
that this is just the Executive Summary. The full text of the Opinion is
available in English, French and German, from the EDPS's website
*here<http://www.edps.europa.eu/>
*.

The job of the European Data Protection Supervisor (EDPS) is to go through
proposed EU legislation and check that it meets the Union's fairly strict
requirements for the protection of privacy and personal data (for more on
the role of the EDPS click
*here<http://en.wikipedia.org/wiki/European_Data_Protection_Supervisor>
*). The IPKat reproduces extracts of the EDPS's approach to *ACTA
<http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement>
*(omitting references) here:

"7. In February 2010, the EDPS issued an Opinion on his own initiative in
order to draw the attention of the Commission on the privacy and data
protection aspects that should be considered in the ACTA negotiations.
While negotiations were being conducted confidentially, there were
indications that ACTA would contain online enforcement measures having an
impact on data protection rights, notably the three strikes mechanism.

8. The EDPS at the time focused his analysis on the lawfulness and
proportionality of this type of measure and concluded that the introduction
in ACTA of a measure that would involve the massive surveillance of
Internet users would be contrary to EU fundamental rights and in particular
the rights to privacy and data protection, which are protected under
Article 8 of the European Convention on Human Rights and Articles 7 and 8
of the Charter of Fundamental Rights of the EU. The EDPS furthermore
underlined the safeguards needed for international exchanges of personal
data in the context of IP rights' enforcement.

9. Now that the text of the proposed agreement on ACTA has been made
public, the EDPS considers it appropriate to issue a second Opinion on ACTA
to assess some of the provisions contained in the Agreement from a data
protection perspective, and by doing so to provide specific expertise that
could be taken into consideration in the ratification process. Acting on
his own initiative, the EDPS has therefore adopted the current Opinion ...
 in view of providing guidance on the privacy and data protection issues
raised by ACTA.

*II. Conclusion*

67. While the EDPS acknowledges the legitimate concern of ensuring the
enforcement of IP rights in an international context, a right balance must
be struck between demands for the protection of IP rights and the rights to
privacy and data protection.

68. The EDPS emphasizes that the means envisaged for strengthening
enforcement of IP rights must not come at the expense of the fundamental
rights and freedoms of individuals to privacy, data protection and freedom
of expression, and other rights such as presumption of innocence and
effective judicial protection.

69. 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.

<http://4.bp.blogspot.com/-1sDsLc6Xoq0/UA0ZKmvFFmI/AAAAAAAAYOc/hJxa8O2rErc/s1600/edps.png>
*The EDPS's logo -- or
psychedelic snail?*

70. It should be ensured that any online enforcement measure implemented
within the EU as a result of entering into ACTA is necessary and
proportionate to the aim of enforcing IP rights. The EDPS underlines that
measures that entail the indiscriminate or widespread monitoring of
Internet user' behaviour, and/or electronic communications, in relation to
trivial, small-scale not for profit infringement would be disproportionate
and in breach of Article of the ECHR, Articles 7 and 8 of the Charter of
Fundamental Rights, and the Data Protection Directive.

71. The EDPS has furthermore specific concerns in relation to several
provisions of the Agreement, in particular:

— the Agreement is unclear about the scope of enforcement measures in the
digital environment envisaged in Article 27, and whether they only target
large-scale infringements of IP rights. The notion of ‘commercial scale’
in Article 23 of the Agreement is not defined with sufficient precision,
and acts carried out by private users for a personal and not-for profit
purpose are not expressly excluded from the scope of the Agreement,

— the notion of ‘competent authorities’ entrusted with the injunction power
under Article 27(4) of the Agreement is too vague and does not provide
sufficient certainty that the disclosure of personal data of alleged
infringers would only take place under the control of judicial authorities.
Furthermore, the conditions to be fulfilled by right holders to be granted
such an injunction are also not satisfactory. These uncertainties may have
a particular impact in cases of requests from foreign ‘competent au
thorities’ to EU-based ISPs,

— many of the voluntary enforcement cooperation measures that could be
implemented under Article 27(3) of the Agreement would entail a processing
of personal by ISPs which goes beyond what is allowed under EU law,

— the Agreement does not contain sufficient limitations and safeguards in
respect of the implementation of measures that entail the monitoring of
electronic communications networks on a large scale. In particular, it does
not lay out safeguards such as the respect of the rights to privacy and
data protection, effective judicial protection, due process, and the
respect of the principle of the presumption of innocence".

The IPKat finds it curious, given the very real dedication of the United
States to the protection of its constitutional rights and freedoms, that
the drive to promote ACTA came from that country's organs of governance
while its constitutionality was challenged from the outside, as it were, by
academics and bodies such as the
*EFF<https://www.eff.org/deeplinks/2012/05/acta-unconstitutional-without-congressional-approval>
*, and the principal ground of challenge appears to be related to the
lawmaking process -- while in the European Union the challenge to ACTA has
been more firmly based on its threat to personal freedoms which are being
protected, at least in some small measure, by a mechanism which is
incorporated into the EU's governance itself.

Merpel notes that the EDPS's Opinion is dated 24 April 2012 and wonders why
it takes nearly three whole months to get this summary online on the
Official Journal.

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