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European Union: Conflict Between Anti-Counterfeiting Trade Agreement and Privacy Rules

(Apr. 21, 2010) On February, 22, 2010, Peter Hustinx, the European Data Protection Supervisor (EDPS), an independent authority that plays an advisory role to the European Commission, issued an opinion regarding compatibility between the Anti‑Counterfeiting Trade Agreement (ACTA) and European Union (EU) rules on privacy and data protection. The EU, with other Member States of the World Trade Organization (WTO), had begun negotiations in 2007 with the objective of drafting an international agreement to improve global standards in enforcement of intellectual property rights and to fight counterfeiting and piracy, an effort that is still in the negotiations process. (Press Release, Anti‑Counterfeiting Trade Agreement: EDPS Warns About Its Potential Incompatibility with EU Data Protection Regime, EDPS/10/3 (Feb. 22, 2010), RAPID, available at

In the opinion, the EDPS expressed his regret over the failure of the Commission to consult him during the negotiations, because of the lack of transparency and information regarding the negotiating process and because the agreement itself raises serious issues in connection with established rules on data protection of EU citizens. (Id.)

The EDPS recommended that the Commission:

a) examine less invasive means to combat piracy on the Internet, such as targeted ad hoc monitoring rather than the proposed “three‑strikes” approach, in order to establish policies to handle violation of counterfeiting rules;

b) enforce existing EU safeguards on all transfers of personal data within the framework of ACTA, safeguards that include the signing of agreements on transfers of data between recipients of such data in third countries and EU senders; and

c) establish a public and transparent dialogue on ACTA, through public consultation process, to ensure compatibility of the agreement and EU privacy rules. (Id.)

Hustinx emphasized in his opinion that intellectual property rights

should not be placed above individuals' fundamental rights to privacy and data protection. A right balance between protection of intellectual property rights and the right to privacy and data protection should be ensured. It is also particularly crucial that data protection requirements are taken into account from the very beginning of the negotiations so as not later on having to find alternative privacy compliant solutions. (Id.)

Furthermore, Members of the European Parliament, in a resolution adopted on March 10, 2010, urged the European Commission to be more transparent in its negotiations with other WTO members; otherwise, the Parliament threatened, it may take the Commission to the Court of the EU. The resolution also called on the Commission not to support severance of access to the Internet as a penalty imposed for online copyright infringement. (Andrew Willis, MEPS Demand More Transparency on Acta Talks, EU OBSERVER, Mar. 10, 2010, available at

The Parliament, in asserting its new powers granted by the Lisbon Treaty, stated that it must be “fully informed at all stages of the negotiations” and requested that the Commission undertake “an impact assessment of the implementation of the ACTA with regard to fundamental rights and data protection.” (Id.)