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Switzerland latest country to back away from ACTA

Out-Law News | 10 May 2012 | 5:31 pm | 3 min. read

Switzerland has postponed signing a controversial international treaty that seeks to set minimum standards on the enforcement of intellectual property (IP) rights.

The Swiss Federation said it was aware of public protests against the Anti-Counterfeiting Trade Agreement (ACTA) and as a result had stepped back from signing-up to its measures. It said it could still sign ACTA later, but that there was currently insufficient information available to do so, according to an automated translation of a statement it issued.

ACTA requires member countries to have in place "enforcement procedures" under national laws that allow for "effective" action to be taken against intellectual property (IP) infringers that is both "expeditious" and a suitable "deterrent to further infringements". However, provisions relating to the enforcement of IP rights that exist in "the digital environment" have proved unpopular with campaigners for digital freedoms.

"The Federal Council takes these concerns seriously because they relate to fundamental freedoms and property legal risks," the Swiss Federation's statement said, according to the automated translation. "This is why Switzerland renounces the moment to sign this agreement."

"The Federal Council will reconsider the issue when it has new evidence on which to base its decision. These elements could be procedures in the five EU Member States which postponed the signing of ACTA, the findings of the compliance review by the European Commission asked [of] the Court of Justice of the European Union, or even the continuation of ratification procedures in the EU," it said.

In February thousands of people took to the streets of cities across Europe to protest against the impact they believe ACTA would have on internet freedoms. This action followed the decision by the UK, and 21 other EU member countries, to sign up to ACTA in January. Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US signed ACTA in October last year.

Subsequent to the protests a number of EU ACTA signatories, including Poland and the Czech Republic, expressed concern with the proposed text and suspended their "ratification" of it. The signatory countries and the European Parliament must both approve the text before it can come into effect.

Concerns have also been raised  about the secrecy in which ACTA was negotiated, with a rapporteur on the text at the European Parliament previously resigning in protest over the ACTA signing process, which he referred to as a "charade". The political parties aligned in a majority grouping at the European Parliament have policies that oppose the approval of ACTA.

In February Germany, one of the five non-signatories to ACTA in the EU,  announced that it would wait to see whether the European Parliament would approve the text first before signing it itself.

In recognition of the dissent around ACTA the European Commission in February asked the EU's highest court, the European Court of Justice (ECJ), to determine whether the treaty complies with the fundamental principles underlying EU law. Last month the Commission confirmed that it had "unanimously" agreed to ask the ECJ if ACTA is "compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union".

The EU Charter of Fundamental Rights contains a number of principles central to the operation of EU law and includes rights to the protection of intellectual property, rights to privacy, free speech, the freedom to conduct business, and protection of personal data.

In April the EU's own privacy watchdog, the European Data Protection Supervisor (EDPS) said that ACTA does not provide adequate data protection and privacy safeguards for individuals.

In addition the European Commission's own vice president, Neelie Kroes, who is responsible for the Commission's Digital Agenda,  has conceded that ACTA is unlikely to be agreed upon.

EU Trade Commissioner Karel De Gucht has previously urged the Parliament to wait for the ECJ to issue its verdict before determining whether to approve it or not. However, a final vote by MEPs is expected next month.

Supporters of the text insist that ACTA merely strengthens enforcement powers relating to IP rights under existing laws and would not alter the way IP rights themselves are protected.

The "effective enforcement" of IP rights is "critical to sustaining economic growth across all industries and globally," the ACTA text itself states.

However, the European Data Protection Supervisor said that the way ACTA was drafted does not contain sufficient detail to guarantee that individuals' rights would not be breached in any enforcement against suspected online copyright infringers.

The watchdog said that ACTA implies that rights holders will monitor use of the internet to identify alleged infringements of their rights by individuals in order to seek an injunction against individuals. Such activity would amount to processing of "sensitive data" because it would relate to suspected offenders, it said. The EDPS also said widespread monitoring by rights holders would be neither necessary nor proportionate and would not be justified.