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Deutsch: ENDitorial: Endspiel um ACTA – Der Teufel steckt im Detail

The last week has seen a flurry of activity surrounding ACTA, with the leak of the latest negotiating text, as well as the adoption of a Written Declaration by the European Parliament.

Some parts of ACTA remain very problematic, such as the text related to statutory damages. Also, the text on the liability of online intermediaries and the extent to which they will be expected to police their clients is now shorter, but less clear than ever before.

The current text reads as follows: "Each Party shall endeavor to promote cooperative efforts within the business community to effectively address (US: copyright and related rights)(EU/J: intellectual property rights) infringement while preserving legitimate competition and consistent with each Party's law, preserving principles relating to freedom of expression, fair process, and privacy, (EU: among other (US: fundamental) principles)."

The first point to note is that this is ostensibly a trade agreement. As a result, every party can claim a legitimate interest in ensuring the implementation of trade-related provisions (such as "cooperation" between ISPs and rightholders) and could, therefore, demand enforcement of this to some degree. However, no party would have an interest in, or a legal means of, ensuring the implementation of fundamental rights in other jurisdictions. As a result, the obligations part of this text is enforceable by parties, while the rights part is not, even though both seem equal in the text.

Secondly, this approach, where ISPs are coerced into a policing role creates an entirely unpredictable environment. Due to the ongoing vertical integration, it is impossible to tell how "cooperation" or surveillance ISPs will feel motivated and justified to undertake. Already we see the British media provider/ISP Virgin planning to undertake deep packet inspection - a "beta test" that will give heart to every totalitarian regime in the world - on a test basis. If ISPs are blocking, filtering and carrying out surveillance to protect Mick Jagger, what will the EU say to Iran when it does the same thing to protect, as it would see it, the functioning of the state? Furthermore, and these are in EU law already, but with the limited privacy and human rights protection that the EU offers, the damages and intermediary injunctions proposed in the current text will help encourage ISPs to "volunteer" to collaborate with rightsholders.

This gives rise to a third issue - where does this leave the European Union's legal obligations to promote and protect democracy and the rule of law in its international relations. Can active support for privatisation of law enforcement in third countries be considered compatible with the obligation in the Treaty on European Union to cooperate in all fields of international relations, in order to consolidate and support democracy and the rule of law?

The European Parliament's Written Declaration is a huge step forward, setting clear limits for the European Commission with regard to harmonization, due process, coercion of ISPs to "voluntarily" undertake blocking/filtering/three strikes, etc. Importantly, it also asks for "all documents related to the ongoing negotiations publicly available" rather than simply the most recent texts. Preparatory texts will be essential for the Parliament and the public at large, to understand the real meaning of the Agreement.

The weakening of some of the most egregious elements of ACTA's disregard for the rights of citizens is very welcome - but the devil is still in the detail. The fight goes on.

Virgin Media to trial piracy-detection software (17.01.2010)
http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/arti...

Treaty on European Union
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:00...

Written Declaration 12 on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA) and potentially objectionable content
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+WD...

Adoption of anti-ACTA declaration - "a big victory" (7.09.2010)
http://www.numerama.com/magazine/16698-adoption-de-la-declaration-anti...

European Parliament vs. ACTA: Rejection is the only option (8.09.2010)
http://www.laquadrature.net/en/european-parliament-vs-acta-rejection-i...

(Contribution by Joe McNamee - EDRi)