Enforcing Intellectual Property Rights by Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy

Enforcing the law in the digital environment is one of the main challenges of the Anti-Counterfeiting Trade Agreement (ACTA). In order to enforce the intellectual property law, unlike previous international agreements on the matter, ACTA attempts to set forth provisions concerned with privacy and personal data. Special provisions refer to law enforcement in the digital environment; ACTA would require the adoption of domestic law to allow identifying supposed infringers and, consequently, the collaboration of the online service providers (OSPs) with rights holders. However, those provisions raise some human rights concerns, particularly as related to the right to privacy of Internet users and the right to protection of their personal data. This paper describes the ACTA provisions on the rights to privacy and personal data protection and compares them with domestic privacy law in the context of intellectual property enforcement, particularly those of the United States (U.S.) and the European Union (EU). The underlying hypothesis of this paper is that the ACTA provisions do not harmonize the domestic laws in force, instead it creates a new standard, beyond any domestic law; the full implementation of those provisions would require modifications in the domestic law, which seriously undermines the right to privacy and protection to personal data. Therefore, this paper calls for some modifications in the current text of ACTA in order to reach an adequate balance between intellectual property enforcement and the aforementioned rights to privacy and personal data protection