Marielle Gallo, the Sarkozy-ite MEP and sweetheart of the rights-holders,  is sharpening her claws in a desparate attempt to derail the ACTA ‘No’ vote. She has released  her draft Opinion, in which she sets out a proposal designed to allay fears that ACTA will infringe fundamental rights. The proposal is little more than a sop.

 Marielle  Gallo’s Opinion is being prepared for the Legal Affairs committee. It  will feed in to the main report on ACTA (Anti-counterfeiting Trade Agreement) being prepared by David Martin, the Parliament’s rapporteur  for the consent vote. So it may, or may not, be of much significance, but given who her backers are, I’d suggest it will end up being significant.

 It certainly looks like she is setting up a position to campaign for an ACTA ‘yes’ vote, in direct opposition to the Socialist group who have said they will propose a ‘No’ vote. 

 Mme Gallo presents an argument that attempts to rebut some of the criticisms of ACTA. She says that ACTA’s criminal provisions  only address infringements on a commercial scale,  and, she claims, ACTA will not criminalise individuals who download.

 In addressing the Internet provisions, she highlights the text which says that the measures must not create barriers to legitimate activity – as if that was a protection against web blocking measures.

In fact, the intended meaning  of ‘legitimate activity’ is quite narrow. It refers to the ISPs and the rights-holders – it does not refer to entrepreneurs, or to the vast mass of content providers and website owners. So this caveat is unlikely to prevent governments introducing web blocking measures, if that is what they want to do.

 But Mme Gallo’s pièce de résistance is  that the European Commission should  conduct a regular impact assessment of ACTA in respect of  fundamental rights. The assessment  should be carried out every year, she proposes. As pointed out by EDRi, the Commission is notoriously cavalier about carrying out impact assessments, even when there is no controversy. The chances of this being an effective proposal, are slim.

Mme Gallo suggests that if there is any infringement found to be occurring, the European Court of Justice has the power to stop it.   However, she fails to point out that someone would have to litigate, and it would have to  be referred to the ECJ by a national court, before that could happen.

  Marielle Gallo’s Opinion  will be open to amendments. She has to remember that – whatever her personal perspective – as shadow  rapporteur she much reflect the full spectrum of views of her committee.

 And as I’ve previously said, the ACTA vote is by no means a dead cert. Many things could happen along the way. We wait to see what Mme Gallo’s Opinion looks like when it is completed.

You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to Media and Academics – please cite as Monica Horten, Can Marielle Gallo claw back ACTA?  15 April  2012 .  Commercial users - please contact me.