February 24, 2014

Seven people can not represent civil society

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On 10 February the Information Society Project at Yale Law School organised a debate on Trade and Transparency in the Internet Age.

Below my introduction:

I would first like to thank the university for the invitation to speak here. I will say a few things about ACTA, the Anti-Counterfeiting Trade Agreement, about its lack of openness, both in the negotiation phase and in the ratification phase. After that I will say a few things about the proposed trade agreement between the United States and the European Union.

In May 2008 Wikileaks published a secret discussion paper on a proposed new international agreement, the Anti-Counterfeiting Trade Agreement, or ACTA. The discussion paper showed that ACTA could contain far-reaching enforcement measures, including criminal measures. ACTA was an alarming forum shift. For example, there is no EU criminal law aimed against intellectual property rights infringements. A few years before ACTA, the European Commission had proposed an EU criminal law against IP infringements. The European Parliament had formulated its position, the proposal was in the hands of the EU Council, the institution that represents the member states. The debates were intense, as civil society knew that badly drafted definitions could lead to criminalisation of everyday computer use.

In 2008, in the midst of the open legislative process, the council and commission started secret ACTA negotiations on the same substance. At the end of the ACTA process, the European Parliament would only be able to vote yes or no. The EU has “fast track” by constitutional design. In a yes or no vote, it could easily happen that badly drafted definitions would slip through.

After analysis of the leaked ACTA discussion paper, there was no further information. We couldn’t analyse anything, we couldn’t give feedback, we couldn’t inform citizens about developments. The only thing we could do was to protest against the secrecy of the negotiations. The FFII and the European Digital Rights initiative filed complaints with the European Ombudsman. Member of the European Parliament Sophie in ‘t Veld sued the commission. In parallel, Corporate Europe Observatory (CEO) sued the commission over secrecy of documents in the EU-India trade negotiations, arguing that documents disclosed to companies should be disclosed to citizens as well.

The complainants lost all their cases. In the EU, the legislative process has to be as openly as possible and as closely as possible to the citizens. But the protection of international relations is a mandatory exception to openness. According to EU case law, the commission can keep document secret to allow mutual trust between negotiators, see for instance In ‘t Veld v Commission.

In December 2009 the Lisbon Treaty entered into force, giving the European Parliament greater power in the conclusion of international agreements. The parliament exercised its power by adopting various resolutions on ACTA, including strong language on openness.

There were more and more leaks of ACTA negotiation documents, which showed that the commission was not always accurate in telling what ACTA was about. For instance, the commission denied that “three strikes” had ever been proposed, the leaks showed that the US did propose three strikes. The leaks made it possible to provide precise feedback, this led to some improvements in the text. For instance, in the later drafts the parties could exclude patents from the civil enforcement section. In April 2010 the parties published a consolidated draft text, this made giving further feedback possible. Neither the leaks, nor the publication of the draft text harmed the progress of the negotiations.

At the end of 2010 the negotiators reached an agreement and published the final draft. Finally, public scrutiny and open debate could start. Then, something amazing happened. The European Parliament had stressed the importance of openness in various resolutions. But now that ACTA moved over to the parliament, the parliament itself started to keep documents secret.

First, the parliament denied the existence of some parliamentary documents. There is no legal basis for this. The parliament can refuse to disclose documents, but it can not deny the existence of documents. The FFII filed a complaint with the ombudsman.

Second, two parliamentary committees asked the parliament’s legal service an opinion on the published ACTA text. The parliament refused to disclose the legal service’s opinion, stating that disclosure of the opinion would harm international relations. But how can disclosure of an opinion on a publicly available text harm international relations, as the negotiations were already over? The FFII filed a second complaint.

In this complaint the FFII argues that the decision is not compatible with the human right to take part in an informed way in important decision-making processes. The FFII refers to the International Covenant on Civil and Political Rights, and to the International Covenant on Economic, Social and Cultural Rights. States can only interfere with human rights by law, if necessary in a democratic society and only in so far as proportionate. According to the FFII, the parliament’s decision to keep the documents secret fails the necessity and proportionality tests.

All the anger over years of secrecy, and over the ACTA end result, led to massive demonstrations throughout Europe. A few months later, the parliament overwhelmingly rejected ACTA. In sum, the secrecy of the negotiations led to a substandard text, and many angry people.

In July 2013 the European Union and the United States opened trade negotiations on a Transatlantic Trade and Investment Partnership, or TTIP. The European Commission maintains that confidentiality of negotiations is needed, but also understands that secrecy of negotiations angers people. The commission moves in the direction of openness, it published proposals and created an expert group of 14 people, half business, half civil society, with greater access to information. The commission will also hold a consultation on investor-to-state dispute settlement – the most controversial aspect of TTIP.

These are steps in the right direction. But 7 people can not represent civil society. And with ACTA, academics provided essential analysis. Academics are experts, but will stay uninformed, unless there are more leaks. We are still far away from the human right of everyone to take part in an active and informed way, and without discrimination, in any important decision making process.

A proportionality test, as found in the human rights covenants could help to find the right balance. I will give two examples. First, in negotiations parties table texts, these are then known to the other party. Tabled texts can be shared with the public as well. After both or all parties tabled texts, the parties make a text with brackets. These texts can be published as well. This is standard practice in many international organisations. Openness leads to greater legitimacy, quality and a better balance.