Significant chunks of the controversial Anti-Counterfeiting Trade Agreement (ACTA), which threatened to make broadband ISPs more liable for the content they deliver but has since been dramatically rejected by the European Parliament (EP), have been found inside a leak of the new Canada-EU Trade Agreement (CETA). Here we go again?
Many feared that ACTA could have provided a foundation for turning ISPs into a form of internet police force. Prior to the vote the EP’s rapporteur, David Martin MEP, also noted that its worringly ambiguous clauses posed “potential threats to civil liberties“.
Now a leaked February 2012 copy (PDF) of the secret CETA negotiations has come under similar scrutiny after it appeared to include many of the same measures, in some cases copied almost word for word, from ACTA’s final draft. As before the relevant ISP related clauses remain somewhat vague and thus potentially open to a wide degree of interpretation.
Article 5.16 – Liability of Intermediary Service Providers
5.16(1) Each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. [CA: For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers, while preserving the legitimate interests of right holders, would be permitted].
5.16(2) Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
5.16(3) A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights.
These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.]
It should be noted that the UK’s laws are already considerably more advanced (Digital Economy Act) than this but many people could still have concerns. Jérémie Zimmermann, co-founder of France-based citizen rights group La Quadrature du Net, suggests that CETA is just a “trick to bring back ACTA through the backdoor“.
La Quadrature du Net claims that CETA “literally contains the worst of ACTA“, in particular pointing towards: general obligations on enforcement, damages, injunctions, DRM circumvention and border measure rules. “The worst and most damaging parts for our freedoms online, criminal sanctions and intermediary liability, are word for word the same in ACTA and CETA,” said the group.
On the other hand February 2012′s draft has yet to properly reflect the recent July 2012 vote and it will be interesting to see whether or not the text is changed.
UPDATE 23rd July 2012
The following article does a good job of showing just how similar the text really is.