Potential threats to online free expression seen in draft trade treaty

Reporters Without Borders welcomes the release by the European Commission of the draft Anti-Counterfeiting Trade Agreement (ACTA), which until now has been the subject of confidential negotiations among some 40 countries. Released on 21 April, the draft nonetheless contains a number of provisions that could pose a threat to online free expression. “Although it is pity that the different positions of the various governments involved do not appear in this document, a real public debate will finally be able to be held about this proposed agreement, one that could have a considerable impact on freedom of expression despite being a trade agreement,” Reporters Without Borders said. “We urge the negotiators not to sacrifice online free speech and access to information for the sake of combating piracy and the counterfeiting of works protected by copyright,” the press freedom organisation continued. “It is essential to modify provisions that could lead to disconnect Internet access and provisions for online filtering in violation of the Net Neutrality principle. The concept of the Internet as a fundamental right should be clearly stated in the agreement, including in its preamble. Judicial procedures guaranteeing transparency and defence rights must also be defined more clearly.” Reporters Without Borders added: “For the time being, this accord is mainly being negotiated by democratic countries but it is supposed to be eventually extended to other countries such as China, which do not have adequate safeguards for free expression and the confidentiality of personal information.” The draft agreement covers a wide range of subjects from counterfeiting pharmaceutical drugs to the illegal downloading of works protected by copyright. Section 4 specifically concerns the digital environment. For the most part, the wording of its provisions is very general and open to differing interpretation by individual governments. Although there is no longer any direct reference to the three strike approach in this version of the agreement, some of its provisions could nonetheless allow the disconnecting of Internet access. One of the “options” for governments mentioned in the draft is “suspension of access to information.” The draft would also allow a court to issue an injunction, including at the start of case, to prevent an “imminent violation.” It would also allow copyright holders to ask Internet Service Providers to identify suspected violators of intellectual property rights. This threatens the protection of personal information and, in repressive countries, would endanger dissidents, journalists and human rights activists. The draft agreement stresses the responsibility of the Internet’s technical intermediaries, turning them into “copyright police.” Internet Service Providers and those who provide such online services as video streaming and blog platforms are right at the heart of the agreement’s provisions. ISPs could be fined if they failed to withdraw or block content that violates copyright. Such measures would have a dissuasive effect. There is a danger that technical intermediaries would remove content they regarded as potentially illegal in order to avoid prosecution, resulting in arbitrary decisions that offered little protection for the rights of Internet users. Technical intermediaries would also be required to prevent the illegal circulation of content that violates copyright. That would open the door to the introduction of Internet filtering mechanisms. The agreement includes an extremely precise calculation of the amount of damages payable for an illegally downloaded film based on the absurd assumption that it should correspond to the value of an unsold DVD. Customs and border procedures are not clearly defined. Although the agreement affirms a degree of protection for personal effects, it is possible that iPhones, iPods, personal laptops and work laptops could be seized or examined by customs officers searching for pirated works or illegally downloaded music. The negotiations have been conducted confidentially for more than two years between the European Union, United States, Australia, New Zealand, Morocco, Mexico, Japan, Singapore, South Korea, Canada and Switzerland without any consultation with NGOs and civil society representatives. The European Commission represented the European Union in the negotiations. The European Parliament passed a resolution last month calling for more transparency. The next round of negotiations is due to take place at the end of June in Switzerland.