The European Parliament’s Civil Liberties rapporteur says that the decision by the European Parliament on ACTA should be  a political not a legal one. He recommends rejecting ACTA (Anti-counterfeiting Trade Agreement), on the basis that  ACTA would prematurely put a freeze on public debate about Internet and copyright.

 The rapporteur on the European Parliament’s civil liberties committee (LIBE)  is the  Greek Socialist MEP Dimitrios Droutsas. He replaces Stavros Lambrinidis, who wrote a seminal report on fundamental rights and the Internet in 2009.

 His statement came in a committee meeting on Tuesday where he presented his draft Opinion. In a nutshell,  he  argued that   as a society  we do need  to achieve the right social and political balance between copyright and the right to freedom of expression online. Speaking in the committee meeting, he said:

 “The culture of file-sharing  poses a challenge to the way we have dealt with compensation of  artists and proper enforcement of intellectual rights. Our task, as  policymakers, is to strike an acceptable balance between the possibilities that technology unravels and the continuation of artistic creation […]”

 ”We are at an exciting juncture of change. ACTA comes at a premature stage. [it] would essentially freeze the possibility of having a public deliberation that is worthy of our democratic heritage.”

 “Against such a monumental challenge, what we absolutely need is that every expert we have, every affected organisation or institution we can spare, every citizen that desires to voice an opinion participates, from the beginning, in the creation of a modern social pact, a modern regime of protecting intellectual property rights. ACTA is not, and was not conceived to be, this. Instead, the  adoption of ACTA would prematurely strangle the debate and tip the balance on one side,  would allow for Member States to experiment on laws that could potentially harm  fundamental freedoms

 In his Opinion, which does have to be written in legalistic language he wrote:

Underlines, at the same time, that it is crucial to strike the appropriate balance between enforcement of IPRs and fundamental rights such as freedom of expression, the right to  privacy and protection of personal data, the right to due process and recalls the case-law  of the Court of Justice of the EU (CJ) as regards this fair balance;

 Ratifying ACTA, he says,  is the wrong way to go about it. If ACTA is ratified, there will be no further possibility for public debate. Conversely, if the European Parliament rejects ACTA, there will be an opportunity to re-shape the policy debate and achieve a happier balance for all stakeholders.

 However, he also points in his Opinion  that this is a complex area, politically and legally:

 points out that privacy and freedom of expression are  not simple principles as referred to in ACTA, but are recognised as fundamental rights by  inter alia the International Covenant on Civil and Political Rights, the ECHR

 This was the Civil Liberties committee, so one would expect it to be sympathetic to protecting rights to freedom of expresion and privacy. There was little real disagreement, however, some tough questions were put.

 Mr Droutsas’ Opinion was criticised by Zuzanna Roithova (one of the sponsors of Amendment 138 – see my book The Copyright Enforcement Enigma ) for not giving  a clear steer on ACTA’s compatibility – or non-compatibility – with the European Convention on Human Rights (ECHR).

The UKIP MEP Gerrard Batten raised the case of Richard O’Dwyer. The Richard O’Dwyer case is that   of a young student who is facing extradition from the UK  to America, on charges of copyright infringement. The charge relates to a website which linked to copyrighted material. The domain was seized by the US authorities prior to the extradition request, which Mr Batten called "utter lunacy".

This is precisely the kind of scenario that ACTA might facilitate, and it signals the possible dangers  of ACTA.  Mr Batten called for a positive rejection of ACTA.

 Mr Droutsas’ response to his colleagues was that he had deliberately contrived an open formulation in his Opinion, in order to allow for debate. He was happy to incorporate a clear statement on ACTA’s incompatibility with the ECHR.

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,   ACTA would prematurely strangle debate, says civil liberties rapporteur, , 10  May   2012 . Commercial users - please contact me