ENDitorial: ACTA, the Euro Parliament resolution and political clarity

By EDRi · March 10, 2010

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Deutsch: [ENDitorial: ACTA, die Resolution des Europäischen Parlaments und politische Klarheit | http://www.unwatched.org/node/1763]

The European Parliament adopted a widely-reported Resolution on ACTA on 10
March. It contained several positive elements. For example, it insists that
the Agreement not go beyond the requirements of existing EU law and demands
an impact assessment of ACTA’s implementation on fundamental rights and data
protection. This latter provision is particularly important with regard to
countries outside the EU, which do not always have legal protections for
fundamental rights.

In addition, however, and widely unnoticed, a last-minute oral amendment
from the conservative EPP group was also adopted. This amendment calls for
“the Commission to continue the negotiations on ACTA and limit them to the
existing European IPR enforcement system against counterfeiting”. That text
was adopted by a huge majority. So, if the European Commission persists in
pushing non-counterfeiting issues such as ISP liability in ACTA, it will
only have itself to blame if and when the Parliament is pushed into
rejecting the agreement by the Commission’s actions.

This clarity from the Parliament is a remarkable contribution to clarity and
openness in this dossier, following weeks and months of half-truths and
misleading statements, particularly with regard to “three-strikes” measures.
We have recently heard several positive statements from politicians about
“three strikes” and ACTA. The assistant US Trade Representative Stanford
McCoy said “the U.S. Government is not seeking these or any other
obligations that would go beyond U.S. law in the ACTA”, the European
Commissioner Karel de Gucht’s spokesman said the EU is “not supporting and
will not accept that an eventual ACTA agreement creates an obligation to
disconnect people” and the German minister said “the Federal Government will
accept no agreement that contains blocking of Internet access”.

The only problem is that it was never anybody’s intention to place an
obligation on ISPs via ACTA to introduce a “three-strikes” rule or similar.
As the recent leak of the draft digital chapter clearly and definitively
proved, the plan was to remove ISPs’ limitations of liability for IPR
infringements unless they chose to implement “measures” to prevent these
infringements from happening. The intention was, therefore, to coerce ISPs
into far-reaching policing activities in order to give themselves adequate
legal certainty. The point is therefore not to use ACTA to mandate the
precise nature of these activities – so the assurances on this point were
devoid of all real meaning.

It is interesting to note that, despite the German Minister’s and European
Commission’s protestations that they would not accept the cutting of
Internet access being in ACTA, the leak indicating the different negotiating
partners’ positions shows no hint of any EU opposition to the measures
explicitly aimed at coercing ISPs into cutting subscribers’ connections.

Now there is no room for doubt. The European Parliament has said that “the
proposed agreement should not make it possible for any so-called
‘three-strikes’ procedures to be imposed” and, in any event “any agreement
must include the stipulation that the closing-off of an individual’s
Internet access shall be subject to prior examination by a court.

While the Parliament’s resolution is not legally binding, it would be
foolhardy for the Commission to believe that a majority of 633 to 13 (with
16 abstentions) from the only directly elected EU institution can be safely

Leaked digital chapter (17.02.2010)

Negotiating positions (12.02.2010)

USTR: No mandatory ‘three strikes’ or filtering in ACTA (10.02.2010)

German minister’s position (only in German, 3.03.2010)

EDRi-gram: Leaked ACTA text confirms suspicions (24.02.2010)

(Contribution by Joe McNamee – EDRi)