#ACTA statement by @VivianeRedingEU with my immediate observations including questions cc @RalfGrahn @FFII @EDRi_org

Here is a statement by Viviane Reding, Vice-President of the European Commission and EU Commissioner for Justice, Fundamental Rights and Citizenship, on freedom of expression and information via the Internet, attempts to block websites, “three-strikes-laws”, and ACTA:

http://ec.europa.eu/commission_2010-2014/reding/pdf/quote_statement_en.pdf

Here are each point Viviane Reding has made, and my comments on each:

1. For the European Union, freedom of expression and freedom of  information, regardless by which technological means and regardless of  frontiers, are fundamental rights. They  are enshrined in the EU’s Charter of  Fundamental Rights[1], which takes precedence over all EU legislation,  including international agreements concluded by the EU. The European  Union therefore stands for a freely accessible Internet and for freedom  of expression and freedom of information via the Internet.

Does the EU’s Charter of  Fundamental Rights really take precedence over international agreements.  It’s murky: http://eur-lex.europa.eu/en/droit_communautaire/droit_communautaire.htm#1.2 and http://www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-e620&recno=3& Some questions have been asked of this regarding ACTA, and only part-answered: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2011-001812+0+DOC+XML+V0//EN

The question of where ACTA stands in terms of primacy over EU laws and EU members laws is vital, as is the question of where ACTA stands on a  supra-EU law (“precedence over”) basis.  EU law has primacy over member state law, and decisions regarding interpretation takes place in the ECJ. If Parties to ACTA had disagreements regarding the interpretation of ACTA, which court would decide on those disagreements? If the EU and US had disagreement over interpretation, where would it be decided on the correct interpretation?  AFAIK, not the International Court of Justice as the US does not recognise it’s jurisdiction, so, where?

2. Intellectual property is also a fundamental right recognised by the EU’s Charter of Fundamental Rights.[2] It ensures that artistic creations by authors are protected.  However, this is not an absolute fundamental right. European  policy therefore should aim at mutually balancing the respect for both  fundamental rights, without calling into question their essence. Freedom of  information and intellectual property rights must not be enemies; they  should be partners!

What is “an absolute fundamental right” (examples of such rights would be helpful) and do citizens actually have any?  Are “freedom of expression” and/or “freedom of  information” an “absolute” fundamental right whereas “Intellectual property” is not, ie, the former have primacy over “Intellectual property” in terms of fundamental rights?

3.  Copyright protection can never be a justification for eliminating freedom of  expression or freedom of information. That is why for me, blocking the  Internet is never an option. Instead, we need to find new, more modern  and more effective ways in Europe to protect artistic creations that take  account of technological developments and the freedoms of the Internet.  The promotion of legal offers, including across borders, should become a  priority for policy-makers

What does Viviane Reding mean by “blocking the internet“? Does it refer the type of blocking ex-President Mubarak did in Egypt when Egypt disconnected Egypt from the internet, or the kill switch legislation Senator Lieberman in the US advocates? Does it refer to blocking elements of the internet, which means blocking certain sites and/or pages on those sites, ie, limiting certain content from being available on parts of the “internet”?

4.  This is a position that I have previously defended in the debate on the EU Telecoms Package in 2009. Some politicians wanted to include in this  legislation provisions that would have authorised a “three-strikes solution”  to protect copyright. I opposed this at the time. In spite of significant  political pressure [3], I instead supported – in the name of the European  Commission and in close alliance with the European Parliament – the  inclusion of an “Internet freedom provision” in the final text of this  legislation. [4]  This “Internet freedom provision” represents a great victory  for the rights and freedoms of European citizens. Under this provision,  “three-strikes laws”, which could cut off Internet access without a prior fair  and impartial procedure or without effective and timely judicial review, will  certainly not become part of European law.

It is good that the “three-strikes” provision was struck out, let us move on and not continually use that as implying proof that ACTA means the current “rights and freedoms of European citizens” are protected with ACTA. It seems to me that the striking out of the “three-strikes” provisions is being used as a strawman argument. The rights and freedoms of European citizens should a least remain the same when any new legislations are enacted. Trumpeting that because certain proposed provisions did not occur does not mean that other enacted provisions do not infringe upon European citizens current rights and freedom.

5. This situation can and must not be changed by the ACTA agreement, which  is currently under public discussion in the European Parliament and in the  national parliaments of the EU Member States. As I said, I am against all  attempts to block Internet websites. Even though the text of the ACTA  agreement does not provide for new rules compared to today’s legal  situation in Europe, I understand that many people are worried about how  ACTA would be implemented. I therefore welcome the intention of  several members of the European Parliament to ask the European  Court of Justice for a legal opinion to clarify that the ACTA agreement  cannot limit freedom of expression and freedom of the Internet.

I fully agree that ACTA cannot and must not be allowed to change the rights and freedoms currently enjoyed by European citizens.  I welcome Viviane Reding’s call for ACTA to be scrutinized by the European  Court of Justice for a legal opinion to clarify that the ACTA agreement cannot & does not limit freedom of expression and freedom of the Internet.  I hope the ECJ has more luck in obtaining all key documents (completely un-redacted) than many other interested parties have had.
[1] – Article 11(1) of the EU Charter of Fundamental Rights.
[2] – Article 17 (2) of the EU Charter of Fundamental Rights.
[3] – See the reports at http://www.edri.org/book/export/html/1603; and at http://www.ecrans.fr/Ripostegraduee-Barroso-dit-non-a,5348.html;

[4] – See ” Commission position on Amendment 138 adopted by the European Parliament in plenary vote on 24 September”, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/681; and http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491&format=HTML&aged=1&language=EN&guiLanguage=f

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One Response to #ACTA statement by @VivianeRedingEU with my immediate observations including questions cc @RalfGrahn @FFII @EDRi_org

  1. Pingback: My Blog: EU-US Passenger Data Agreement (PNR), trans-national EU data transfers. | awbmaven

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