Although I am far from being a conspiracy theorist, the covert manner in which the whole ACTA saga has unfolded left many perturbed, worried and even deeply concerned about the underhand tactics that were used to bring it into being.

Many are even asking questions about what could have really triggered the referral of the ACTA Treaty to the European Court of Justice.

While I firmly believe in striking the right balance between economic and intellectual property rights and human rights in this digital age, it has long been highly evident that the scales were tipped one way.

The worst thing about ACTA is that not only did it raise justified concerns and doubts but, apart from being in itself a very complex proposal, its complexity was made worse by the many optional provisions and even more so by its deliberately vague and confused language.

It is in the public interest to find out what the Commission’s specific request was and how it has been formulated since, as a European Digital Rights FAQ recently pointed out, “as a result, a general directionless question to the ECJ as to whether the Agreement as a whole can be considered to be in line with the Treaties risks being too broad to lead to detailed deliberations from the Court on many of the more subtle points of concern”.

They even went to the extent of speculating that a politically motivated question would risk undermining the court’s own independence.

Many pro ACTA policy makers now see a referral to the court as a “good strategy” because an approval by the court could be given as “proof” that ACTA does not present any problems. Even though, as they mentioned, the response would only deal with a small fraction of the concerns surrounding the proposal.

Over and above all these vital aspects, the court referral could help the pro ACTA lobby buy more time, particularly since it has become increasingly evident over the last few days and weeks that the European Parliament could easily demolish the whole ACTA project when it came up for approval later in the year, around the June period.

With the court procedures likely to take anything between 12 and 18 months, those who have been rooting for ACTA are thought to be keeping their fingers crossed in the hope that by then the controversy surrounding the whole agreement might have abated and even possibly died down by the time a ruling is given, thus making it easier to finally obtain approval of it at EU level.

Although I am no legal expert, specialists in the field I have consulted are of the opinion that any referral can, legally, only address compatibility with EU treaties and not the full body of EU law.

If, on the other hand, the court rules that the agreement is incompatible with the EU treaties, then there are two possibilities.

Either the treaties must be amended or else ACTA must be abandoned.

If it is meanwhile decided that the Agreement is compatible with the Treaties, the process of ratification may continue.

But the consent of the European Parliament will still be needed to ratify it at a European Level.

The same will apply as far as member states are concerned, particularly the criminal sanctions aspects of ACTA, which many consider to be draconian.

It is a given that the lack of transparency in the negotiations themselves had undermined citizens’ confidence in the whole treaty process.

Central to the whole issue was not just the text proper but also the implications of the text.

The new rapporteur of the EP, although taking a far less critical approach than his predecessor still highlighted the fact that the Parliament should know what guidance the Commission would send on implementing the deal. He was also quoted as saying that they would need clarification on a number of areas, including service providers and border control agencies, noting that the obligations and how these would be carried out were not clear at all.

Neither can one ignore the fact that some 2.5 million people petitioned against the agreement.

As Swedish MEP Christian Engstrom remarked – “If two and a half million signatures do not mean anything then we have no right to call ourselves a parliament!”

It was interesting to note that both the Polish Premier and technical people in Malta who sent us their submissions as a Foreign & European Affairs Committee, stressed the fact that the whole debate should not be limited to specific provisions of ACTA but that it should also have a vastly broader, over-arching scope, to cover all aspects of the IPR agenda.

We would be interested to find out what our own Data Protection Office thinks of the opinion delivered officially on the 22 February 2010 by the European Data Protection Supervisor of the EU on the said issue.

The Council of Europe is also taking a deep interest in such an issue, particularly since it has long become a custom for it to open draft treaties to a process of public consultation, especially when such treaties concern Internet regulation.

Even at this stage, it would be interesting to establish through public consultations – possibly at a technical and legal level – to determine what future domestic legislative changes will be needed resulting from ACTA.

Such domestic legislation must respect in particular Articles 6, 8 and 10 of the European Convention on Human Rights and Article 1 of its first Protocol.

I recently came across some very disturbing news on the whole process.

Although it was claimed that all stakeholders were informed and involved this has proved to be untrue.

Although the European Commission did share some documents with the European Parliament, MEPs were allegedly not allowed to pass on any information they obtained.

In the case of some briefing sessions the information given was declared to be ‘in camera’ i.e. closed to the general public.

To give oral information in a closed meeting, with no documents at all being handed out, hardly qualifies as keeping Parliament fully informed.

A 2009 Freedom of Information request showed that the following companies had received copies of the draft treaty under a non disclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner and Verizon.

The only stakeholders that seem to have been truly informed and involved were the copyright industries who were present from the very start.

As Joseph Muscat rightly pointed out recently: “The PL will continue to make its voice heard about ACTA until the agreement is completely stopped. Each Maltese citizen should feel secure that they can continue using the Internet without fear or obstruction.”

In the meantime, while the Prime Minister has promised the drafting of digital user friendly legislation to sweeten the pill, up to the time of writing, not one single exponent of government – at either an executive or parliamentary level – except for a lone voice in our Committee – has had the will power and political clout to criticise in any way the ACTA Treaty itself.

[email protected]

www.leobrincat.com

Mr Brincat is a member of the House Committee on Foreign & European Affairs that is currently scrutinising the ACTA Treaty

This article was written before Friday’s committee meeting.