Questions from the European Parliament are exposing the  weaknesses in the Commisson’s ACTA negotiations.  

In the Internet section, ACTA uses the term ‘fair process’, which has baffled many analysts  as it does not have any legal standing under EU law. In response to a question from the MEP Christian Engström regarding the definition of ‘fair process’, the European Commission has come back with a  response that  - in my opinion – prises open the deficiencies in its position.  The question posed was

Article 27.2 of the ACTA final text refers to the ‘fundamental principle’ of ‘fair process’.

Could the Commission explain:

1.         What it understands by ‘fair process’?

2.         How it came to this view? In particular, can the Commission provide references to the specific international legal texts or ACTA preparatory documents on which it bases its understanding of this ‘fundamental principle’?

The answer is officially in the name of the Trade Commissioner, Karel De Gucht:

 The Commission's understanding of ‘fair process’, as referred in Article 27.2 is that it is used in the same sense as in Article 41.2 of the TRIPS Agreement(1), which establishes that procedures concerning the enforcement of intellectual property rights shall be fair and equitable. ACTA being, to a considerable extent, based on the TRIPS Agreement, this was the basis for introducing in the area of Internet enforcement a principle which is already common to all the ACTA members (all also members of TRIPS) when implementing general enforcement procedures.

TRIPs does indeed use the term ‘fair and equitable’, but it is used in a clear context concerning how the other party ( the alleged infringer) should be treated. In the analogue context in which TRIPs was negotiated, the underlying assumption was that the there would be a court process.  This TRIPs requirement has been transposed by the European Union into the IPR Enforcement directive.

In ACTA, the term ‘fair process’ is used in a quite different context. It is one of a list of ‘fundamental principles’ appended to  provisions which  call for some form of new  liability to be imposed on ISPs. In the case of Article 27.2 this is via a footnote and in 27.3 this is via a call to ‘promote co-operative efforts’ for enforcing copyright.

There is a fundamental right to due process, which is guaranteed under EU law – and a reminder exists in Article 1.3a of the Telecoms Package. But ‘fair process’ is not the same, and the drafters should have known this.  

There is no connection in the ACTA draft with the rights of the ‘other party’. ACTA seems to wipe out the provisions to protect the rights of the other party.

 In the digital environment, the ‘other party’ could be an ISP or a  website owner  or an Internet user.  And as readers of  Iptegrity will know,  the issue in the digital environment is the possible lack of a judicial process. Thus, the rights we are talking about here are the rights of ISPs, website owners and Internet users to defend themselves against any allegation of infringement or any injunction to block content.

 Yes, commissioner De Gucht, ACTA is indeed ‘based on’ TRIPs. However,  it makes a number of small but significant changes, which, when applied to the digital environment, will create a massive difference in their effect.

To find out more about copyright enforcement on the Internet and the right to due process, see my book

The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'

Please attribute this article: Monica Horten (2011) ACTA: does the European Commission know fair process?    http://www.iptegrity.com  19 October 2011.

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