ACTA and the Enforcement of Copyright in Cyberspace: the Impact on Privacy

Published date01 November 2013
Date01 November 2013
AuthorIryna Ievdokymova
ACTA and the Enforcement of Copyright
in Cyberspace: the Impact on Privacy
Iryna Ievdokymova*
Abstract: As the reach of the Internet expands, governments increasingly seek to intro-
duce initiatives aimed at controlling individuals’ online activity. One such initiative,
aimed, inter alia, at introducing enhanced online copyright enforcement standards, is the
Anti-Counterfeiting Trade Agreement (ACTA). The paper analyses a possible effect of
Art. 27(3) of the agreement on the data protection and privacy rights, as spelled out in
the EU legal order. Firstly, the EU legal framework on Internet surveillance for copy-
right enforcement will be addressed. Next, the principles and safeguards applicable to
data processing in the context of communications surveillance will be illustrated with
reference to the jurisprudence of the European Court of Human Rights. It will be argued
that ACTA, if interpreted broadly and implemented without safeguards, would provide
an incentive for graduated response systems, which, as it will be shown on the example
of the French graduated response, may trump privacy rights on a massive scale.
I Introduction
Could cyberspace be considered a zone of liberty, for the most part unrestrained by
government regulation and intrusion into individual rights and freedoms? On the one
hand, the Internet has served to expand the boundaries of information sharing to an
unprecedented degree. However, as the dividing line between the online and ‘real’
world is becoming ever vaguer, initiatives affecting individuals’ activities in cyber-
space are intensif‌ied as well.
A recent such initiative, the Anti-Counterfeiting Trade Agreement (ACTA), has as
one of its main goals the protection of intellectual property rights (IPR), inter alia
copyright, in cyberspace. This paper addresses the effect of ACTA from the perspec-
tive of the conf‌lict between copyright enforcement, on the one hand, and privacy and
the protection of personal data, on the other hand. Up until now, signif‌icant criticism
has been voiced of ACTA, with the agreement being characterised as severely ham-
pering fundamental freedoms ‘competing’ with copyright. Does the agreement indeed
incentify a large-scale surveillance of individuals on the Internet? Are ‘ACTA-
compliant’ measures bound to curtail existing data protection safeguards?
The paper will address these questions, focusing on the effect of ACTA on the
Internet surveillance of individuals and the processing of the latter’s personal data,
* PhD Candidate, Leiden Law School; email: I would like to thank, for
their helpful comments and feedback, Marga Groothuis, Eldar Haber, Francis Snyder and the partici-
pants of the 9th International Workshop for Young Scholars, 29 November-1 December 2012,
Schenzhen, China, where the f‌irst version of this paper was presented. All mistakes remain mine.
European Law Journal, Vol. 19, No. 6, November 2013, pp. 759–778.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
instituted for the purpose of copyright enforcement. It will do so on the example of
the conf‌lict between Article 27(3) of ACTA’s ‘Digital chapter’ and the EU data
protection and privacy framework. To that regard, f‌irstly, the history of ACTA and
the main textual developments of the ‘Digital chapter’ will be outlined. An overview
of the EU legal framework on copyright enforcement, as well as privacy and the
protection of personal data will follow, while the application of data protection
safeguards to the surveillance of communications will be further illustrated with
reference to the case-law of the European Court of Human Rights (ECtHR). Based
on this analysis, it will be argued that Article 27(3) ACTA, if interpreted broadly and
implemented without safeguards, may provide an incentive for graduated response
policies, which, as it will be shown on the example of the French graduated response,
may trump privacy and data protection rights of individuals on a massive scale.
II ACTA: A Brief History and Text Developments
Signed by the EU on 26 January 2012, ACTA was rejected by the European Parlia-
ment (EP) some half a year later.1The result of the vote, while disappointing for the
industry, was welcomed by NGOs and civil rights activists, hailing it as a victory for
fundamental rights, inter alia on the Internet.2While the possible impact of ACTA on
privacy and the protection of personal data will be addressed below, one can state
right away that the very atmosphere surrounding ACTA negotiations contributed to
EU citizens’ concerns.
Indeed, ACTA talks appeared to give a feel of lack of transparency and of exclu-
sivity.3Aimed at establishing an enhanced international framework for IPR enforce-
ment, the agreement was negotiated by mostly developed economies outside the
framework of available international forums, such as World Trade Organization
(WTO) or World Intellectual Property Organization (WIPO).4The closed talks
pointed to an IPR-oriented and exclusionary agenda of the developed economies,
which, in its turn, appeared driven by tensions between the developed and developing
1EP legislative resolution of 4 July 2012 on the draft Council decision on the conclusion of the Anti-
Counterfeiting Trade Agreement between the EU and its Member States, Australia, Canada, Japan, the
Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic
of Singapore, the Swiss Confederation and the United States of America (12195/2011—C7-0027/2012
2See, for mostly for the reaction of industry and MEPs, ‘Goodbye ACTA: EU Parliament rejects
anti-piracy treaty,’ EurActiv.Com, 5 July 2012, available at:
goodbye-acta-meps-f‌lex-muscles-a-news-513736. For the reaction of NGOs, see, eg ‘Thank you, SOPA,
thank you, ACTA,’ European Digital Rights (EDRi) Newsletter, no. 10.13, 4 July 2012, available at:; J. Killock, ‘ACTA: You Won!,’ Open Rights
Group, 4 July 2012, available at:
3See, eg M.E. Kaminski, ‘An Overview and the Evolution of the Anti-Counterfeiting Trade Agreement,’
(2011) 21 Albany Law Journal of Science and Technology 385–444, at 390–391; K.L. Port, ‘A Case against
the ACTA,’ (2012) 33 Cardozo Law Review 1131–1183, at 1136–1137, 1156–1159, 1162 and A. Metzger,
‘A Primer on ACTA: What Europeans Should Fear about the Anti-Counterfeiting Trade Agreement,’
(2010) 1 Journal of Intellectual Property, Information Technology and E-Commerce Law 109–116, at
4See A. Metzger, n. 3 supra, at 110; M. Kaminski, n. 3 supra, at eg 386, 390, 443 and further, indirectly,
K. Port, n. 3 supra, at 1162, stating that ‘[. . .] the Agreement is insulated [. . .] from the international
multinational sphere by avoiding the treaty-making system contemplated by the TRIPS Agreement
European Law Journal Volume 19
760 © 2013 John Wiley & Sons Ltd.

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