EU Data Watchdog Slams ACTA Secrecy

by Ulrika Lomas, LawAndTax-News.com, Brussels

24 February 2010

The European Data Protection Supervisor (EDPS) has expressed concern that the negotiations towards an Anti-Counterfeiting Trade Agreement (ACTA), which have potentially serious implications for individual privacy, are being held under an apparent cloak of secrecy.

In a forthright statement issued on February 22, the EDPS, Peter Hustinx, said that he "views with concern the fact that little information is publicly made available about current negotiations."

"The EDPS regrets that he was not consulted by the European Commission on the content of an agreement which raises significant issues as regards individuals' fundamental rights, and in particular their right to privacy and data protection," the statement said. "From what has been reported about the content of ACTA, he is concerned as regards a potential incompatibility between envisaged measures and data protection requirements. This would apply in particular to the legal framework that would be put in place to fight piracy on the Internet and which could include large scale monitoring of Internet users and the imposition of obligations on Internet Services Providers to adopt "three strikes Internet disconnection policies"

The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address challenges of internet piracy in particular by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures. The ACTA is intended to be consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and participants in these negotiations include Australia, Canada, the European Union (represented by the European Commission), the EU Presidency (Spain), EU member states, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, Switzerland, and the United States.

Hustnix himself added: "Whereas intellectual property is important to society and must be protected, it should not be placed above individuals' fundamental rights to privacy and data protection. A right balance between protection of intellectual property rights and the right to privacy and data protection should be ensured. It is also particularly crucial that data protection requirements are taken into account from the very beginning of the negotiations so as not later on having to find alternative privacy compliant solutions."

The EDPS has made three main recommendations regarding the ACTA process, including the following:

• to investigate less intrusive means to fight piracy on the Internet: the EDPS takes the view that three strikes approach policies are not necessary to achieve the purpose of enforcing intellectual property rights. Alternatively, less intrusive solutions should be considered or, at least, envisaged policies should be performed at a more limited scope, notably through targeted ad hoc monitoring;
• to apply appropriate safeguards to all data transfers in the context of ACTA: as far as ACTA involves international exchanges of personal data between authorities and/or private organizations located in the signatory countries, the EDPS calls on the EU to implement appropriate safeguards to all data transfers made in the context of ACTA. Such safeguards should take the form of binding agreements between EU senders and third country recipients;
• to establish a public and transparent dialogue on ACTA, possibly by means of a public consultation, which would also help ensuring that the measures to be adopted are compliant with EU privacy and data protection law requirements.

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