We live in the Digital Age and in a fully globalized world in which intellectual property rights (IP rights) are no longer configured in the same way they did before. That is why the Anti-Counterfeiting Trade Agreement was designed in order to respond to new technological and human challenges. But when ACTA was revealed to the public opinion an intense debate emerged from the first moment and almost immediately civil and Internet organizations totally opposed to the content of ACTA alleging that the agreement was a serious violation of fundamental rights. On the other side, the signatory states, the right holders of those IP rights and the European Union, defended Intellectual Property as an engine of economic growth, job creation and encouragement of innovation and artistic and technological creation.
The purpose of this seminar paper is to explain which provisions of ACTA hinder fundamental rights as enshrined in the different European catalogues of human rights, namely the German Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. But the scope of ACTA is much wider, it covers topics such as generics medicines, innovation and competition, which are not objective of this paper and therefore they will not be analyzed.
In order to understand which violations are perpetrated by ACTA, this paper is divided in four parts. In the first one I will explain what is the Agreement and how was negotiated. We will see that is a matter of great topicality since the final vote at the European Parliament is about to take place, specifically in a month. Second, I will explain how those catalogues of fundamental rights relate to each other. In other words, how a multilevel of protection of fundamental rights affect the guarantees protected by those rights. Third, I will analyse which provisions of ACTA do not respect European fundamental rights. Finally, I will draft some conclusions.
B.THE ANTI-COUNTERFEITING TRADE AGREEMENT
I.WHAT IS ACTA
The Anti-Counterfeiting Trade Agreement (ACTA) is a multilateral agreement which its main objective is to establish a harmonized standard for the enforcement of intellectual property rights in order to combat the violation of protected rights all around the world. In order to fulfill this task, the agreement contains provisions on international cooperation between States and the coordination of law enforcement, especially the introduction of civil and criminal sanctions for intellectual property infringements , such as counterfeit goods, generic medicaments and copyright infringements on the internet. The countries involved in the Agreement are the United States, Japan, Canada, the European Union (with its 27 Member States), Switzerland, Australia, Mexico, Morocco, New Zealand, South Korea and Singapore, making a total of 11 contracting parties.
Since ACTA is an international agreement that bounds only the contracting parties, it is a method of creation of a new international law. According to the EU Commission “ACTA will help countries work together to tackle more effectively Intellectual Property Rights (IPRs) infringements” . So the interest of the EU to sign this agreement resides in the concern of remaining at a relevant position in the global economy and by this way being able to protect the jobs related to intellectual property all around the European Union.
The Agreement is divided in Chapter I for Initial provisions and general definitions; Chapter II for the Legal framework of enforcement of Intellectual Property Rights (and subdivided in Section 1: General Obligations with Respect to Enforcement, Section 2: Civil Enforcement, Section 3: Border Measures, Section 4: Criminal Enforcement and Section 5: Enforcement of Intellectual Property Rights in the Digital Environment); Chapter III for Enforcement practices; Chapter IV for International cooperation; Chapter V for Institutional arrangements and Chapter VI for Final Provisions.
II. HOW IS ACTA BEEN NEGOTIATED
During the whole process of negotiation of ACTA, much criticism has arisen due to the lack of transparency and the possible violation of fundamental rights. The potential infringements of fundamental rights will be discussed at a further moment and now we will see how the whole agreement was decided. On 23 October 2007 the office of the Unites States Trade Representatives released an announcement about a new initiative called ACTA . The objective of this agreement was to address a “new international agreement focused on cooperation, best practices, and a strong legal framework for Intellectual property rights enforcement”. Since then, eleven negotiation rounds took place between June 2008 and October 2010. But what it was unusual is the fact that this new agreement on intellectual property rights was never negotiated under the scope of the WIPO or the WTO. The Member States of the European Union were represented by the European Commission and the Presidency of the Council.
The first consolidated text of ACTA was drafted at the eighth negotiation round in Wellington (New Zealand) in April 2010. On June 2011, the European Commission asked a proposal for a Council Decision on the conclusion of ACTA , and in December 2011 the final version of the Agreement was adopted unanimously by the Council and signed by the European Commission and 22 Member States on 26 January 2012 (Germany, Cyprus, Estonia, the Netherlands and Slovakia have not signed it yet). In order to be part of EU law the Agreement must be ratified by the EU, which means approval by the European Parliament under the procedure for international commercial agreements described in Article 218(6) TFEU and ratification by Member States under their national procedures.
Knowing that there is a need of a vote at the European Parliament, the society has expressed its concerns about ACTA by mobilizations all over Europe thanks to the effort of some NGOs and Internet movements, and even declarations of some MEPs . This made Commissioner Karel De Gucht, under the procedure foreseen at Art. 218(11) TFEU, to decide to refer the Agreement to the Court of Justice of the European Union . So on 4 April 2012 the question decided unanimously by the College of Commissioners that was sent to the ECJ was: “Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?”. It is known that rulings from the ECJ take time, but until the opinion is made, the European Parliament decided to uphold its vote until the ECJ had made any conclusion .
However, it decided that it will continue to supervise the Agreement. The next logical step would had been to make another referral to the ECJ by the European Parliament, but on 28 March, this Institution decided to reject a referral to the Court of Justice because there was “no need to do so, because the file will anyway go to the court – according to intentions announced by the European Commission”. It was surprising how the EU Digital Agenda Commissioner Neelie Kroes suggested at a conference on internet freedom in Berlin on 4 May 2012 that ACTA was probably not going to be ratified since she stated that “We are now likely to be in a world without SOPA and without ACTA. Now we need to find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens, not just for the techno avant-garde”. This does not mean that the Agreement will be immediately rejected, there is a need to hold a vote at the European Parliament in order to do so.
The final vote on ACTA has been scheduled for the 3-5 July 2012 , but before ACTA goes to vote before the European Parliament, several EP committees will be giving their opinions on the 31 May 2012, namely the Legal Affairs Committee (JURI), the Industry Committee (ITRE) and the Civil Liberties Committee (LIBE). Once these committees have drafted an opinion, the main committee in charge on ACTA, the International Trade Committee (INTA), will decide on the 21 June 2012 and it will elaborate a final report that will be used by the European Parliament for its final vote on ACTA.
As we have seen, the whole negotiation of ACTA has been of major relevance not only to the public opinion, but also for the MEPs and some other Organs of the European Union, like the European Data Protection Supervisor. Remains to be seen what the final decision of the European Parliament would be and this will undoubtedly have consequences in both ways: If ACTA is ratified by the Parliament, the Agreement will come into force, but if not, it will be pretty much dead if it does not have the support of the European Union. So we still need to wait until the 3-5 July 2012 to see how it will all end and the next weeks are going to be of extremely importance because the ratification process is not over yet, meaning that the issue is really topical.
C.THE DIFFERENT LEVELS OF PROTECTION OF FUNDAMENTAL RIGHTS IN EUROPE
In this section I will explain the relationship between the different catalogs of fundamental rights that concern this seminar paper, namely the German Basic Law, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or ECHR) and the Charter of Fundamental Rights of the European Union (Charter). It is obvious that this classification can raise questions to EU citizens when they seek the protection of their fundamental rights, since they exist up to four catalogues: the national constitutions, the ECHR, the case law of the ECJ and the Charter .
I.THE DEVELOPMENT OF FUNDAMENTAL RIGHTS THROUGH THE ECJ AND THE ECtHR
At one first moment the ECJ declared it had no jurisdiction to ensure compliance with national law, which did include a catalog of fundamental rights within the national Constitutions. This first stage was changed after the Stauder decision of 12 November 1969 that said that fundamental rights are part of the general principles of Community Law , and the CJEU has the task to protect them, but it didn’t say which rights were those: “Interpreted in this way the provision at issue contains nothing capable of prejudicing the Fundamental Human Rights enshrined in the general principles of Community Law and protected by the Court”. The next step on the case law of the ECJ was the Internationale Handelsgesellschaft judgment of 17 December 1970. Here the Court confirms the existence of general principles for the protection of fundamental rights within the Community Law inspired by the constitutional traditions common to the Member States : “[…] in fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.
The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community”. But the ECJ stated that Community law could not be judged against national law, even constitutions: “[…] the validity of a Community instrument or its effect within a Member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that States’ constitution or the principles of a national constitutional structure.” By this way, the Court had to analyze the situation under the national law of the Member States when it was faced with a situation with no legal or insufficient response. Four years later, the Nold judgment of 14 May 1974 made a reference to international treaties as elements of inspiration for the definition of a scope of fundamental rights, but also the ECJ stated that it cannot go in a different direction to the one established in the constitutional laws of the Member States.
By doing so, the rights recognized in the different legal orders where the limit to the action of the ECJ: “In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, International Treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community Law”. As the judgment states, the ECJ refers namely to the Convention for the Protection on Human Rights and Fundamental Freedoms of 1950 (ECHR), becoming this latter treaty the maximum standard for the protection of fundamental rights. Nevertheless it must be said that the constitutional traditions of the Member States as source of inspiration does not mean that the rights within can be invoked in ECJ.
The final step was made in the Hauer judgment of 13 December 1979, when the ECJ stated that: “[…] that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community; and that, similarly; international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community Law”. By holding that fundamental rights are an integral part of the general principles of law the observance of which the Court ensures, the ECJ has accomplished two things: To incorporate a central feature of modern constitutions into the corpus of EC law and to help strengthen the authority of EC law against potential challenges before national courts in the name of domestic constitutional rights .
The next step in cooperation between Community law and the ECHR was given in the cases of Matthews and Bosphorus . In Matthews was decided that Member States can be held responsible if EC primary law violated the ECHR, because those Member States are still responsible for infringements although they have transferred some of their competences to the European Communities. In Bosphorus the problem at issue was whether an EU Member State could be responsible under the ECHR for an execution of a Community Regulation. As stated in Matthews, Member States are responsible for acts and omissions of its organs regardless whether the competencies are national or at supranational level, but the difference was that in this case, the Member State was obliged by a Regulation, which gives no discretion when implementing it. In order to solve this situation, the ECtHR gave a status of “equivalent protection” to the ECJ, meaning that “State action taken in compliance with such legal obligations is justified as long as the relevant organization is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides” .
The Court continues: “If such equivalent protection is considered to be provided by the organization, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization” . Since that level of protection was indeed guaranteed by former judgments of the ECJ, the ECtHR decided not to interpret Community law and from now on, the ECJ has an equivalent protection of fundamental rights as the one within the ECHR. When the Charter of Fundamental Rights of the EU (Charter) came into force with the Treaty of Lisbon , the ECJ could now rely its fundamental rights jurisdiction on a single catalog of European law .
But what is the relationship between the rights in the Charter and the ones in the ECHR? Article 52(3) of the Charter explains it: “Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. The reason for such provision is to avoid a lower standard of protection than the one of the ECHR. Therefore, a restriction of a fundamental right can only be acceptable under the terms of the ECHR and it prevents possible confusion of the Member States when being subjected to two different catalogs of rights . Moreover, as the Charter reiterates and complements the ECHR, there is no dual system of fundamental rights. In fact, it reaffirms the same common list of fundamental rights .
II.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL CONSTITUTIONAL COURT AND THE EUROPEAN COMMUNITIES / THE EUROPEAN UNION
The main problem at stake was that two different levels of protection were created. One circle was the one created by the case law of the ECJ and the other circle was the list of rights protected by the national constitutions . How did the German Federal Constitutional Court solve this problem? In the Solange I -decision, the German court stated that in case of conflict between the Community law and fundamental rights protected in the German Basic Law, the latter would prevail as long as the European Communities did not have a catalogue of fundamental rights which is equivalent to the catalogue of fundamental rights guaranteed by the German Constitution. But after how the ECJ ruled, namely after Nold and Hauer, the German Constitutional Court changed its opinion and stated in the Solange II -decision that as long as the European Communities ensured a protection of fundamental rights which is to be regarded as substantially similar to the protection of fundamental rights by the German Constitution, and safeguards the essential content of fundamental rights, it is not an obligation for the Constitutional Court to examine the compliance of Community law with the German law.
But in 1993, the German Constitutional Court seemed to go back to the previous doctrine of the Solange I-judgment in its famous Maastricht decision , where it stated that from that moment it wanted to apply its jurisdiction regarding to the protection of fundamental rights in a cooperation relationship with the ECJ. The Constitutional Court had the strong opinion that it is the only one capable of protecting the fundamental rights enshrined in the Basic Law, so for this purpose it extends the meaning of public power and declares that no matter what kind of power (German Government or the European Communities) violates fundamental rights enshrined in the Basic Law because it will always have the jurisdiction. By doing so, the former Communities were supervised by the German Federal Court every time their activity fell under the scope of application of the Basic Law. Seven years later, in June 2000, the Court changed its mind again at the Bananenmarketordnung judgment. It explained that the previous doctrine was a “misunderstanding”.
The German Constitutional Court will review possible violations of fundamental rights only if the European Communities fail to do so. But this cannot be justified by a single case, but by a serious deficiency at european level . This means that while the ECJ continues to effectively protect fundamental rights, there will be no German control of those rights over the European law. We can conclude that over the ruling of the German court, this has been a reluctance to recognize the supremacy of Community law concerning the protection of human rights, but this supremacy has finally been recognized as a prerequisite for Germany to participate in the European Integration Process .
III.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL CONSTITUTIONAL COURT AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The European Convention on Human Rights (ECHR) contains a catalogue of fundamental rights which the Federal Republic of Germany is bound to guarantee as well, since it ratified the convention on 3 September 1953. The basic principle of International law pacta sunt servanda obliges to do it . It was never a problem, since the fundamental rights protected in the German Basic Law followed a parallel interpretation to the ones guaranteed in the ECHR. In fact, Articles 1 to 9 from the Basic Law bear resemblance to the ones in the ECHR . In addition, the Constitutional Court elaborated the concept of Völkerrechtsfreundlichkeit of the Basic Law , which means that Germany’s fundamental rights should be interpreted in the same way as the ones enshrined in the ECHR in order to fill the possible gaps in the reading of both catalogues . So when interpreting the Basic Law, the development of the ECHR needs to be taken into account without, of course, restricting the protection provided in the Basic Law. It seems that this doctrine would not lead to a confrontation between the German Federal Constitutional Court and the European Court for Human Rights (ECtHR), but this was not the case in the Görgülü judgments.
It is peculiar how the German Court does not confirm that a judgment of the Strasbourg Court should be simply executed, but instead says that “the authorities and courts of the Federal Republic of Germany are obliged, under certain condition, to take account of the European Convention on Human Rights as interpreted by the ECtHR in making their decisions.” . By saying “taking account” and not, for example, “comply with” the Court declares that under some circumstances it can decide not to execute a judgment of the ECtHR. The only requisite is that the competent court under the German legislation needs to give reasons why this doctrine can be applied . In fact, the German judgment states : “If […] the ECtHR establishes that there has been a violation of the Convention, and if this is a continuing violation, the decision of the ECtHR must be taken into account in the domestic sphere, that is the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they nevertheless do not follow the international-law interpretation of the law.”
The main reason for this was that it could be eventually possible that under the view of the ECtHR a situation could be interpreted widely and under the German law it should be more carefully viewed. But still, after the ECtHR has made its decision, national authorities cannot challenge it, except when, in opinion of the German Court, through a constitutional complaint . The Federal Constitutional Court thinks of itself as the Guardian of the due to respect of ECtHR’s decisions . Although this new doctrine means a significant change in the case law of the German Court it does not affect the content of the fundamental rights within both catalogues. It is true that now the German Court could be a kind of appeal organ in some cases for the judgments of the ECtHR, but as already said, both catalogues interpret their rights in the same way, so it is not a question of which rights prevail, but a question of sovereignty that does not affect the interpretation of those rights.
IV.IS THERE A TRUE MULTI-LEVEL OF PROTECTION OF FUNDAMENTAL RIGHTS IN EUROPE?
It is true that within every State exist three different catalogues of protection of fundamental rights, namely the national Constitutions (the Basic Law), the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (plus the case law of the ECJ), but as we have seen each of these lists are interrelated to each other: -ECJ draws inspiration of national constitutional traditions and the ECHR; -The Charter has its minimum standard of protection in the ECHR; -The fundamental rights in the German Basic Law must be interpreted as in the ECHR. Therefore, when an agreement like ACTA infringes fundamental rights it does it indeed at a multi-level, but that does not mean that such rights have a different protection or a different interpretation within the distinct catalogues.
D.ACTA AND FUNDAMENTAL RIGHTS
ACTA have undeniable effects on fundamental rights as protected in the German Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Namely, these rights are: -The right to freedom of expression and information (Art. 5(1) BL; Art. 10(1) ECHR; Art. 11(1) Charter); -The right to privacy and data protection (Art. 10(1) BL; Art. 8(1) ECHR; Art. 7 and 8(1) Charter); -The right to a fair trial (Art. 103(1) BL; Art. 6 ECHR; Art. 47 Charter); We will also discuss about the “fundamental principles” that ACTA seems to guarantee.
I.THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION
Art. 10(1) ECHR guarantees the right to freedom of expression and information, but also the right to freedom to hold opinions and to receive and impart information without interference of public authorities . The German Basic Law must consider the ECHR as source of interpretation when applying its Art. 5(1) BL. Moreover, ECJ has considered the right to freedom of expression and information as one of the general principles of European law which is enshrined now in Art. 11(1) Charter. It is impossible to deny the importance that today has the Internet when talking about freedom of expression and information: online newspapers, video channels, bloggers, webmasters, tweeters, etc. The ECtHR has many times stated that freedom of expression is the foundation of a democratic society: “The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”.
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man” . Moreover, the UN Special Rapporteur on Freedom of Expression has declared that access to the Internet and the freedom to seek, receive and impart information and ideas over the Internet is an inherent part of the freedom of expression . In a democratic society people must feel free to express their ideas and must be able to receive information with no censorship. Any action that goes in a different direction would hinder the fundamental rights within the different European catalogues. Art. 23 ACTA refers to criminal offences:
23(1): Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale [Fn]. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage. Article 23(1) ACTA implies the criminalisation of certain acts carried out in the digital environment, but it does not define in a clear way what kinds of acts could be considered as criminal offences. We should ask whether private file sharing match the nature of those acts. In opinion of the EDPS , the article makes no reference to criminal offences recognised in the law of the contracting parties, so he deduces that the provision refers to a new category of offences which Art. 23(1) ACTA fails to provide with a clear definition to meet the legal certainty required.
Another worrying provision from Art. 23(1) ACTA are the notions of “commercial scale” and “direct or indirect economic or commercial advantages” which are also not defined at all. The EDPS thinks that the interpretation of those words can be very broad and include acts carried out by individual in the Internet that could be innocent and/or trivial . Since there is no list again of what acts could be done at a “commercial scale” this is not sufficient to see whether that notion would fit under the definition that the European Union gives to “commercial scale”, which excludes those acts “carried out by private users for personal and not-for profit purposes” . All these measures are real interferences to the right to freedom of expression and information because such a legal uncertainty could criminalise innocent and trivial Internet data exchange, which its main purpose is not to violate IP rights, but the possibility to express, be informed, hold opinions and to receive and impart information which are essential for a democratic society.
One of the reasons of why ACTA was so much criticized in the beginning was due to the so unpopular ISP liability and the “three strikes” rule. This was originally intended by the drafters of the Agreement which did not please the public opinion when a provisional version of the agreement was leaked . As the European Parliament study on ACTA on July 2011 reveals, there were extensive provisions relating “liability of online service providers, including restricted safe harbours; takedown or removal of material at the request of rightholders; and third party secondary, and contributory liability. In prior proposals put forward by other parties, provisions for the cutting-off of internet service of infringers (so-called three strikes provisions) were also put forward, although these did not appear in later texts”.
In the actual consolidated version such measures were eliminated from the Agreement. However, residues of liability can be seen in Art. 27 ACTA: Art. 27(1): Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are available under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements. Art. 27(2): Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.
These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. [fn] Footnote: For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holder.
There is the opinion that the initial idea of the drafters of ACTA still remains in their minds. The footnote suggests that liability on ISPs will always exist, but now, the only requisite is to have a limit to this liability, but it does not say under what terms it must be done. What it says is that interests of rightholders are the first ones to take account. According to this opinion , this would still allow ISPs to disconnect users of alleged IP rights violations and therefore deprive them of their right to freedom of expression and information.
II.THE RIGHT TO PRIVACY AND DATA PROTECTION
Art. 8(1) ECHR guarantees also the confidentiality of individual communications, that is why private life and correspondence are protected under the same article. Since telephone communications fall within the scope of the article, Internet communications too. Art. 10(1) BL goes beyond and also protects from prohibitions, interruptions or delays of communications . Both rights are considered basic principles of European law and now they are enshrined in Arts. 7 and 8(1) Charter. The provisions of ACTA that violate these specific rights are Art. 11 and Art. 27(4): Art. 11: Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.
Art. 27(4): A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. Under Art. 11 extensive disclosure orders are allowed . This covers “infringers”, “alleged infringers” and “any person involved in any aspect of the infringements or alleged infringement”, they also include “the identification of third persons alleged to be involved”.
In addition, Art. 27(4) allow data disclosures for the purpose “to identify a subscriber whose account was allegedly used for infringement”. But are IP addresses personal data? In order to know that, we need to read the definition of personal data provided in Art. 2 Directive 95/46/EC : “any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number”. It is obvious that such IP addresses constitute personal data since individuals can be identified by those numbers. Although the purpose of those articles is the detection and prevention of possible IP rights infringements, the wording makes it clear that Internet users will not be warned while they are being monitorised, even if they are not suspicious for having infringed some sort of IP rights.
Moreover, this monitoring would be done by ISPs if right holders ask them to do so. In opinion of the EDPS a generalised monitoring is an act that invades individuals’ private sphere. So, for these acts to be justified, they must be necessary and proportionate, but when ACTA does not apply any limit to the monitor process it is obvious that it would count as infringements all those acts that are carried out for no profit. If there is no proportionality and rightholders can access to private data with no restrictions, even if individuals are not violating IP rights, it is a clear example of an infringement to the right to privacy and data protection.
III.THE RIGHT TO A FAIR TRIAL
The right to a fair trial is a general principle of law of the European Union common to the Member States and which the Federal Republic of Germany is bound by it , which is now embodied in Art. 47(2) Charter. Also Art. 6 EMRK protects the right of a fair trial and since the Völkerrechtsfreundlichkeit doctrine Art. 103(1) BL gives meaning to it. Art. 12 ACTA contains the provisional measures which are part of the legal answers that right holders can rely on in civil law. But Art. 12(2) fails to provide guarantees for a fair trial: Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay. It is true that provisional measures, even in inaudita altera parta procedures, are allowed, but only because they are the exception.
This is against the principle of “equality of arms” defined by the ECtHR (and followed by the German Federal Court and the ECJ) that means that in judicial procedures a defendant may not be placed at a substantial disadvantage against his counter-party . When such a possibility is accepted by a legal system it also provides safeguards to ensure that the defendant can restore his “equality of arms”. But ACTA do not seem to provide this. It does not stress that provisional measures and proceeding inaudita altera parta should be the exception and this could lead to two possible consequences. First, when protecting IP rights it is justified to use those extraordinary measures as normal and second, that there is no need to provide guarantees . Regarding the provisional measures of Art. 27(4) it is not clear to which “competent authorities” the article refers to. In opinion of the EDPS the ambiguous concept does not provide with the sufficient legal certainty of whether the disclosure of information would be taken place by judicial authorities.
He believes that such concept could also include administrative bodies that are not embodied with the sufficient “guarantees of independence, impartiality and respect of the rights to the presumption of innocence and to a fair trial”. It must be also considered that ACTA enable to private parties to adopt functions that belong to judicial authorities and it seems as if there is a “privatisation” of IP rights law . Art. 27(3) enable the “business community” to address IP infringements: Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
Right holders cannot judge whether a particular action violates IP rights, in fact, when certain type of data must be processed in relation to suspected offences or criminal convictions, Art. 8(5) Directive 95/46/EC states that those acts ”may be carried out only under control of official authority, or if suitable specific safeguards are provided under national law”. Moreover, the UN Special Rapporteur on Freedom of Expression has stated that “Lack of transparency in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions” and “To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention” . If ACTA does not make any effort to offer any guarantee to the right to a fair trial and even aims to provide the “business community” with the powers of the judicial authorities it is evident that departs from the fundamental rights enshrines in the Basic Law, the ECHR and the Charter.
IV.THE “FUNDAMENTAL PRINCIPLES”
The digital chapter, namely Arts. 27(2), 27(3) and 27(4) refers to the need to preserve “fundamental principles such as freedom of expression, fair process and privacy”. The EDPS states that by only referring to those principles and no giving real safeguards is not enough. He asks himself whether the drafters of the Agreement did not choose o include “fundamental rights” instead of “fundamental principles”, since freedom of expression and privacy are not “principles”, but fundamental rights. Also, the negotiators chose to avoid referring to the right to a “fair trial” or to the right to “due process”, instead they referred to the term: “fair process”, which, as confirmed by the European Commission , that is not a fundamental principle of international law.
To make a comparison, the EDPS gives an example of the necessary safeguards that must be always included and must always be “in conformity with the European Convention on Human Rights and general principles of Community law, including effective judicial protection, due process, the principle of presumption of innocence and the right to privacy”. It seems that such terms are not intended to properly ensure fundamental rights in the way they do the different European catalogues.
It is true that IP rights must be protected and since we live in a digital era, that task has become more difficult due to a more globalized world. But the protection of IP rights must not be given precedence over fundamental rights. ACTA have failed to respect the fundamental rights within the Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Much of it is due to a very vague, ambiguous and unclear wording of its provisions, making it impossible to foresee what kind of actions, both civil and criminal, infringe intellectual property rights. Moreover, there are no explicit de minimis rules that could make the provisions of ACTA proportionate so they do not hinder fundamental rights. IP rights are not above fundamental rights.
This is something that the ECJ stated twice in the Telefónica/Promusicae and Scarlet/Sabam cases. Namely, in the latter said that a “a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other”. ACTA will be voted next month at the European Parliament and it seems that MEPs will vote against it (although it is not sure yet).
Meanwhile, the European Court of Justice will decide whether the Agreement is compatible with the rights in the Charter of Fundamental Rights of the European Union and, as we have seen, there are grounds for the incompatibility of ACTA with this catalogue of rights. If we want to enforce the legitimate IP rights that rightholders have we need to stop criminalising trivial and private use of data in the Internet, we need to stop thinking in mechanisms to deny access to information and we need to ensure that judicial authorities continue to be the ones capable to enforce those rights.