Yesterday in the Legal Affairs Committee JURI in the European Parliament, we had an exchange of views on the ACTA agreement. Last week we got a Legal Opinion on ACTA, and in particular its compatibility with European fundamental rights, from the parliament’s Legal Service. This was the background for the discussion.
The first one to speak was French MEP Marielle Gallo, who is the rapporteur for the report that the JURI committee will be writing, and who is very much in favor of ACTA.
Then it was my turn. This is what I said when I was given the floor:
First of all, I’d like to thank the Committee for the decision yesterday to make the Legal Opinion public. I think that was a very good and very sensible decision, and as the chairman pointed out, it is compatible not only with the Cashman report, but also with the Turcu case from the ECJ. So that is a very good thing.
Then, looking at this Legal Opinion, I think it is a very interesting Opinion, because it confirms many of the concerns that we have raised about the ACTA agreement, and in particular whether it is compatible with fundamental rights in the European Union and elsewhere in the world.
If we look at paragraph 40 of the Legal Opinion, the language is extremely guarded in this Opinion. It says in subparagraph (d):
”It appears that the Agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.”
Now, if I ever listened to guarded legal language, that was it.
And the Opinion as a whole explains why it is, quite rightly, so guarded. It points out that very, very much depends on how this treaty is actually implemented in Member State laws or in Directives.
For instance, the issue of proportionality is very important, and is a fundamental right. All laws, and all punishments etc., have to be proportionate.
According to the ACTA agreement, if somebody does make illegal copies and downloads things illegally, damages should be calculated on the retail price or market value.
Now, as an example: A two-terabyte disk can hold roughly half a million songs. If you calculate that, at the market price of 1 euro per song, which is quite normal, then the damages for having a 2 TB disk full of music would be half a million euro.
Would that be proportionate or not? This is not an extreme example, this is something that lots of teenagers do. Is it really proportionate that the family would have to sell their house and all their possessions if they were found out?
This Legal Opinion seems to be of the opinion that ”well, yes, perhaps it could be”. The lawyers who wrote the Assessment of ACTA for the INTA Committee in June this year, were of the opposite opinion. They said that this raises real concerns about whether it is proportionate or not.
Like I said in the beginning, we can see from the language of the Legal Opinion that the ACTA agreement is at the very least borderline when it comes to respecting fundamental rights. And here we have a case where we have opposing opinions, from quite serious and qualified lawyers on both sides.
The ones who wrote the INTA Assessment are saying that ”no,this is probably not proportionate”, whereas the Legal Service is suggesting that ”maybe it is”.
I think this strengthens the case for what we have been asking for, and what we are asking for: That we should send the ACTA agreement to the European Court of Justice, to get clear and proper guidance as to how it should be implemented — if it can be implemented in a way that is compatible with fundamental rights and the acquis.
There are other things that are very interesting in this Opinion as well. In paragraph 32, it mentions ”three-strikes”, and says that three-strikes was on the table during the negotiations, but then it was removed from the negotiations.
This is very interesting, because almost exactly a year ago, on December 22, I had put a written question to the Commission, asking if three-strikes had in fact been discussed. The Commission then said that ”at no stage in the ACTA negotiations were there any proposals on the table about the direct or indirect introduction of compulsory three-strikes or graduated response systems”.
But now the Legal Opinion here says the opposite, which is in conformity with the leaks of previous draft agreements. The problem is that those draft agreements have never been released officially, so we can’t actually know who is right or wrong here.
To me, it makes sense to have all those draft agreements made public officially, because, as the Legal Service points out, the problem with the ACTA agreement as it stands now is that it is very vague. It is not at all obvious how various things should be interpreted.
One of the core aspects of the ACTA agreement is that it talks about ”cooperation” between rightholders, internet service providers, and the business community in general. In the early drafts, it was pretty clear what that cooperation meant, because then, ”three-strikes” was mentioned in a footnote, as an example of it. But then that was removed, so it becomes a bit unclear what that cooperation is supposed to mean.
And that brings us to another problem. Ms Gallo mentioned China, quite rightly, because indeed, when we are discussing whether this is a worthwhile agreement or not: It is supposed to be an anti-counterfeiting agreement, and China is not one of the signatories. Yes, one can very much ask: Is this worthwhile at all?
But going beyond that, when we are talking about China: This kind of cooperation, with private companies cooperating under the auspices of the government, is one of the big problems for European and Western companies wanting to enter into China and offer services on the internet.
So far, we have been able to at least criticize China for doing that. But if we sign an agreement actually encouraging that kind of cooperation, we would lose all our moral high ground in relation to China. I think that could be very damaging to European companies trying to enter into that market.
And as I said: What is the point of an anti-counterfeiting agreement that doesn’t include China?
To conclude: I think this Legal Opinion confirms the fact that ACTA is at best a borderline case. It depends very much on how it would be implemented, if it actually would be compatible with fundamental rights. So, I think there is a very strong case for asking for more authoritative guidance from the ECJ before we even consider giving consent to signing this agreement.
Also read the account of the committee meeting by by David Hammerstein at the TransAtlantic Consumer Dialogue TACD
Video of the entire JURI meeting, ACTA debate starts at 11.31