ACTA Officially Headed to the European Court of Justice

Is ACTA a violation of European human rights? That’s what the European Commission hopes to find out. The controversial agreement has been referred to the European Court of Justice.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Negotiated behind closed doors. Very few stakeholders involved or even allowed to hear the negotiations. Considered to be one of the greatest threats to the Internet today. ACTA has been one of the most controversial agreements around. The only reason we’ve even heard about it in the first place was because the text of the draft document was leaked by Wikileaks.

While the original drafts contained a global three strikes provision, one of the more recent versions has had that removed. Still, it is a major threat to innovation and Internet because of it exporting the more controversial provisions of the DMCA to the rest of the world and even goes beyond US case law.

Serious questions are being raised like whether or not this agreement, if implemented, is violation of human rights and, as is the case here, could ever be properly implemented in European law. ZDNet is reporting that these matters will now be looked at in court:

The Commission said in February that it intended to make the referral, to see whether ACTA was in line with fundamental rights. However, the European Parliament, which is set to vote on ACTA’s ratification in June, has refused to delay that vote to wait for the ECJ’s opinion.

There is a great amount of hostility towards ACTA within the Parliament, and digital agenda commissioner Neelie Kroes has already admitted that ratification is likely to be rejected. If that happens, the copyright enforcement treaty cannot come into force anywhere in the EU.

Kroes, however, is not the commissioner in charge of handling what is nominally a trade agreement.

In a statement on Friday, the spokesman of trade commissioner Karel De Gucht said the referral had gone ahead, asking the ECJ: “Is the envisaged Anti-Counterfeiting Trade Agreement (ACTA) compatible with the treaties and in particular with the Charter of Fundamental Rights of the European Union?”

“The Court’s opinion is vital to respond to the wide-ranging concerns voiced by people across Europe on whether ACTA harms our fundamental rights in any way,” John Clancy said. “The European Commission has a responsibility to provide members of the European Parliament and the public at large with the most detailed and accurate information available.”

The decision to implement ACTA ultimately rests on the European Parliament. The question is, would it ever be ratified? The speculation is that it won’t. From The Guardian last week:

Speaking on Friday, Kroes said that “we are now likely to be in a world without Sopa” — the US’s proposed Stop Online Piracy Act — “and Acta.”


Ryan Heath, a spokesman for Kroes’s office, said the European commission has not changed its position on the usefulness of Acta, and was continuing to work toward its ultimate ratification, but added that Kroes was “observing political reality”.

Kroes’s comments come weeks before the commission, the EU executive, is due to make public new rules to ensure that musicians and film-makers get paid, and while it is trying to overhaul the bloc’s copyright regime to cater for the internet era.

Critics say the commission is holding back planned reviews of the EU’s own rules because officials are worried it will come up against the same kind of resistance as Sopa and Acta.

“After the tremendous mobilisation of citizens around the world against Sopa and Acta, it would be extremely dangerous politically for the commission to propose a new repressive scheme,” said Jeremie Zimmermann, from internet advocacy group La Quadrature du Net.

According to La Quadrature du Net, there has already been a draft report saying that ACTA is contrary to basic democratic rights:

Today, on May 8th, the rapporteur Dimitrios Droutsas presented his draft report to the LIBE committtee, highlihtening that ACTA was a threat to fundamental freedom and would freeze any attempt to democratically debate copyright policy in the EU. As many LIBE members underlined the lack of a clear call for rejection of ACTA, he agreed to add to his report language stressing that ACTA is not compatible with the Charter of Fundamental Rights of the European Union, thus clarifying his position.

“Mr. Droutsas’ draft report is a very important acknowledgement that the EU has a role to play to protect and promote human rights internally and on the international stage, and that ACTA runs counter to this duty. The document also rightly underlines the need to open a broad debat on the future of copyright and overcome the dangerous antagonism between today’s current regime and the new social practices that are flourishing online, such as culture sharing.” said Philippe Aigrain, co-founder of the citizen advocacy group La Quadrature du Net.

“After the EU privacy watchdog’s opinion slamming ACTA, this draft report is yet another blow to the EU Commission and other copyright extremists within the Parliament, who have been relentlessly pushing for ACTA. The committee on civil liberties must approve Mr. Droutsas’ report, recommending the Parliament to reject ACTA and making clear that a broad and open-ended debate on the future of copyright is needed.” said Jérémie Zimmermann, spokesperson of La Quadrature du Net.

With all indications saying, basically, that ACTA is dead in the European Union, it will be interesting to see if this is re-confirmed by the European Court of Justice.

I think that if the court rejects this and the European Union refuses to ratify it, this could also jeopardize the chances of countries passing other, more draconian copyright agreements such as the Trans-Pacific Partnership (TPP), which we’ve discussed recently, because an international standard has been set saying that these agreements are a contradiction to the basic principles of democracy. After all, I never understood how criminal laws could be discussed and negotiated in secret between a small one-sided set of stakeholders, brought to various countries and expect the countries to just rubber stamp those laws.

Drew Wilson on Twitter: @icecube85 and Google+.

1 Trackback or Pingback

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: