Earlier this week the European Data Protection Supervisor (“EDPS”) adopted an Opinion on the proposed Anti-Counterfeiting Trade Agreement (“ACTA”) between the EU and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the USA.

The Agreement aims to protect intellectual property rights (“IP rights”) by developing a common approach to enforcement and facilitating cooperation at international level.  Though ACTA includes a wide range of provisions addressing issues such as the counterfeiting of goods and the unlawful use of trademarks, the Opinion focuses in particular on measures relating to the enforcement of IP rights in the digital environment.

It states that many of the measures involve a form of monitoring of individuals’ use of the Internet that would constitute an interference with their fundamental rights and freedoms, such as the rights to privacy and to data protection.  The EDPS stresses that some measures would be disproportionate and in breach of the Data Protection Directive.  In addition, ACTA is stated to not contain sufficient limitations and safeguards such as the respect of the rights to privacy and data protection.

Though ACTA has already been signed by a majority of the countries which are party to it, including 22 EU Member States, it must be ratified by the European Parliament before it can enter into force in the EU.  The EDPS’ Opinion comes amidst growing criticism of the Treaty in recent weeks.  Since the Opinion’s publication, the Treaty’s rapporteur in the European Parliament, David Martin MEP, has recommended that it be rejected and the liberal ALDE group (“Alliance of Liberals and Democrats”) has declared that they would vote against it.  It seems increasingly unlikely therefore that the necessary Parliamentary approval will be achieved this summer for the Treaty to enter into force.