The Anti-Counterfeiting Trade Agreement (ACTA) has been subjected to further scrutiny (please click here and here to view our previous articles on ACTA). The European Data Protection Supervisor (EDPS) has stated that while international cooperation is desirable in respect of intellectual property rights, the provisions of ACTA, if not implemented properly, may adversely affect the fundamental rights of individuals.

The aim of ACTA is to strengthen the enforcement of intellectual property rights, including online, and to help combat counterfeiting and piracy of goods including luxury brand clothing, music and films. It includes provisions on civil, criminal, border and digital-environment enforcement measures, cooperation mechanisms among ACTA parties to assist in their enforcement efforts, and the establishment of best practices for effective enforcement of intellectual property rights.

Opponents of ACTA, including French parliamentarian Kader Arif and the Slovenian ambassador Helena Drnovsek Zorko, have previously expressed concern in relation to the nature of the consultation process and specific aspects of the draft legislation concerning Internet service providers. According to the EDPS the provisions of ACTA are flawed. In an opinion published on 24 April 2012, the EDPS stated that measures that allow widespread monitoring of Internet users’ behaviour in relation to small-scale not for profit infringement would be disproportionate and in breach of the European Convention on Human Rights, the EU Charter of Fundamental Rights, and the Data Protection Directive. The EDPS also noted that ACTA lacks sufficient limitations and safeguards, such as effective judicial protection, due process, the principle of the presumption of innocence, and the right to privacy and data protection.  

In summarising the view of the EDPS, Giovanni Buttarelli, Assistant EDPS, stated:

“While more international cooperation is needed for the enforcement of IP rights, the means envisaged must not come at the expense of the fundamental rights of individuals. A right balance between the fight against IP infringements and the rights to privacy and data protection must be respected. It appears that ACTA has not been fully successful in this respect.”

Contributed by Brian McElligott