On 24 April, the European Data Protection Supervisor (EDPS) adopted an Opinion on the controversial proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA). The Opinion shows that the lack of precision of the Agreement about the measures to be deployed to tackle infringements of intellectual property rights (‘IP rights’) on the Internet may have unacceptable side effects on fundamental rights of individuals, if they are not implemented properly. It underlines that many of the measures to strengthen IP enforcement online could involve the large scale monitoring of users’ behaviour and of their electronic communications. These measures are highly intrusive to the private sphere of individuals, and should only be implemented if they are necessary and proportionate to the aim of enforcing IP rights.
Giovanni Buttarelli, Assistant EDPS, states: “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.”
In his Opinion, the EDPS stresses in particular that:
· measures that allow the indiscriminate or widespread monitoring of Internet users’ behaviour, and/or electronic communications, in relation to trivial, small-scale, not for profit infringement would be disproportionate and in breach of Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data Protection Directive;
· many of the voluntary enforcement cooperation measures would entail a processing of personal data by ISPs which goes beyond what is allowed under EU law;
· ACTA does not contain 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.
The EDPS Opinion can be read in full here.
