The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed deal on copyright-protecting measures being negotiated by the European Commission, US, Canada, Japan and other governments around the world.
It has attracted controversy because of the intense secrecy surrounding the proposals since news of the negotiations became public two years ago. Critics have alleged that figures from industry have seen drafts of proposals that citizens of negotiating countries have not been able to see.
Hustinx has published an opinion which criticises the process for its secrecy and warns of the impact of its alleged measures.
"The EDPS regrets that he was not consulted by the European Commission on the content of an agreement which raises significant issues as regards individuals' fundamental rights, and in particular their right to privacy and data protection," said a statement from Hustinx's office. "In this context, he views with concern the fact that little information is publicly made available about current negotiations."
"From what has been reported about the content of ACTA, he is concerned as regards a potential incompatibility between envisaged measures and data protection requirements," said the statement. "This would apply in particular to the legal framework that would be put in place to fight piracy on the Internet and which could include large scale monitoring of Internet users and the imposition of obligations on Internet Services Providers to adopt 'three strikes Internet disconnection policies'."
Hustinx said that governments should be careful to balance the rights of individuals to privacy with the need for companies and creators to protect their copyright.
"Whereas intellectual property is important to society and must be protected, it should not be placed above individuals' fundamental rights to privacy and data protection," he said. "A right balance between protection of intellectual property rights and the right to privacy and data protection should be ensured. It is also particularly crucial that data protection requirements are taken into account from the very beginning of the negotiations so as not later on having to find alternative privacy compliant solutions."
The office of the EDPS said that it had to base its assessment of the privacy implications of the deal on a summary of 'key elements' of the discussions produced by the European Commission last November. The 'opinion' it has adopted said that the rights of those to be investigated under any deal must be respected.
"Data protection laws cover all individuals, including those who are potentially involved in counterfeiting and piracy activities; the combat of large-scale infringements will certainly also involve the processing of personal data," it said. "In this respect, the EDPS strongly encourages the European Commission to establish a public and transparent dialogue on ACTA, possibly by means of a public consultation, which would also help ensuring that the measures to be adopted are compliant with EU privacy and data protection law requirements."
Hustinx demanded that the European Commission try to find ways to combat online copyright-infringement which did not infringe on people's rights to privacy. He said that monitoring internet use was acceptable, but that it should be "more limited [in] scope, notably through targeted ad hoc monitoring".
He also expressed concerns at the international transfers of personal data that could be involved and demanded that binding agreements be put in place to ensure that EU citizens were given the same protections in the EU as outside of it.