Opinion of the European Data Protection Supervisor, April 24, 2012

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Opinion of the European Data Protection Supervisor

Conclusions


  1. While the EDPS acknowledges the legitimate concern of ensuring the enforcement of IP rights in an international context, a right balance must be struck between demands for the protection of IP rights and the rights to privacy and data protection.

  2. The EDPS emphasizes that the means envisaged for strengthening enforcement of IP rights must not come at the expense of the fundamental rights and freedoms of individuals to privacy, data protection and freedom of expression, and other rights such as presumption of innocence and effective judicial protection.

  3. Many of the measures envisaged in the Agreement in the context of enforcement of IP rights in the digital environment would involve the monitoring of users' behaviour and of their electronic communications on the Internet. These measures are highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms to, inter alia, privacy, data protection and the confidentiality of their communications.

  4. The EDPS has furthermore specific concerns in relation to several provisions of the Agreement, in particular:

    -  the Agreement is unclear about the scope of enforcement measures in the digital environment envisaged in Article 27, and whether they only target large-scale infringements of IP rights. The notion of 'commercial scale' in Article 23 of the Agreement is not defined with sufficient precision, and acts carried out by private users for a personal and not-for profit purpose are not expressly excluded from the scope of the Agreement;

    -  the notion of 'competent authorities' entrusted with the injunction power under Article 27(4) of the Agreement is too vague and does not provide sufficient certainty that the disclosure of personal data of alleged infringers would only take place under the control of judicial authorities. Furthermore, the conditions to be fulfilled by right holders to be granted such an injunction are also not satisfactory. These uncertainties may have a particular impact in cases of requests from foreign 'competent authorities' to EU-based ISPs;

    -  many of the voluntary enforcement cooperation measures that could be implemented under Article 27(3) of the Agreement would entail a processing of personal by ISPs which goes beyond what is allowed under EU law;

    -  the Agreement does not contain sufficient limitations and safeguards in respect of the implementation of measures that entail the monitoring of electronic communications networks on a large-scale. In particular, it does not lay out safeguards such as the respect of the rights to privacy and data protection, effective judicial protection, due process, and the respect of the principle of the presumption of innocence.

 

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