The ACTA gold standard

Skrivet av Erik Josefsson lör, 2009-12-26 03:00 , permalink

Update: The European Ombudsman's answer and first inspection report to FFII's complaint. Inspection of documents carried out on December 8: "[...] as regards the documents classified as "RESTREINT UE", no photocopies or notes containing direct quotes from the documents could be taken".

"ACTA needs to be set as the “gold” standard" said the President of the International Trademark Association at a Swedish Presidency conference in Stockholm two weeks ago. I said in May that Sweden could win the World Cup in transparency would the Swedish Parliament's Committee on Industry and Trade vote on a resolution that "the government immediately should make public all documentation regarding ACTA which affect, or aim to alter, Swedish citizens’ everyday life and Swedish corporations’ liberty of action and freedom of trade" and "to investigate the possibility to revoke the mandate of the Commission to negotiate about ACTA in secrecy".

In Sweden, the gold standard for democracy is based on that citizens and politicians have correct and complete information. In the context of the resolution above, the Chair and a number of prominent members of the of Committee wrote in an article that ACTA negotiations contains "nothing relating to the Internet". This was obviously a false statement leading to the conclusion that the Committee on Industry and Trade did not have correct and complete information at the time of the vote on the resolution.

Today it is beyond doubt ACTA aims to regulate the Internet. Professor Michael Geist writes that the Commission's analysis of ACTA's Internet chapter indicates "the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law".

So there are laws being pushed says Professor Geist, but the Chair of the Swedish Parliament's Committee on Industry and Trade says "ACTA is not a law".

To try to understand whether or not ACTA is law I made a diff between the Free Trade Agreement between the Republic of Korea and the EU and the the E-Commerce directive 2000/31/EC. At the conference mentioned above, the Swedish Ministry of Justice representative said that the EU/Korea FTA "illustrates what a more detailed legal framework can include". According to G8 leaders ACTA is "a legal framework" too.

Chunks of exact copies of law text in a law journal does not make a law journal into "a law". A legal framework with chunks of exact copies of law text does not make a legal framework into "a law" either, but it raises the question whether such a distinction can justify censorship (see video at 0:54). I think not. The ECJ said in the Turco case that lack of information and debate give rise to doubts as regards the lawfulness and the legitimacy of the decision-making process as a whole and that the "possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights". And indeed, in April, the Swedish Ministry of Justice acknowledged that there is a need to inform about the content of ACTA, particularly to counter the spreading of rumours. But yet it said that "Sweden can not unilaterally make public information on the contents of the draft agreement and other negotiated documents, as it would interfere with the relationship to other ACTA countries".

So we have a conflict. On one hand Swedish citizens have a right to effectively exercise their democratic right to scrutinize all information which has formed the basis of a legislative act, on the other disclosure must not interfere with the relationship to other ACTA countries.

In FFII's complaint to the Ombudsman regarding the Council's refusal to give access to ACTA documents a solution is proposed: "It is possible to both protect international relations and transparency, by informing negotiating partners beforehand that legislative texts will be made public. [...] Then, with a new mandate that takes into account the importance of informing other parties of the democratic nature of the Community, the Community can join the negotiations again."

ACTA will certainly form "the basis of a legislative act" as the ECJ formulated it. Therefore I don't think the members of the Committee on Industry and Trade would again reject a motion on the basis that "ACTA is not a law" or that "international relations" overrides the rights of citizens. That is why I will try to update the motion and have it retabled on January 19 when the Committee convenes again. You are welcome to help me here: http://etherpad.com/public-acta.

After all, what's at stake is the meaning of the expression "gold standard".

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