The secretive approach adopted by parties in negotiating the controversial Anti-Counterfeiting Trade Agreement constrained the ability of the public to challenge limits on free expression, writes Graham Reynolds.
The Anti-Counterfeiting Trade Agreement (ACTA) is a plurilateral agreement negotiated between Australia, Canada, the EU and its 27 member states, Japan, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, Switzerland, and the US.
As noted in the preamble to the final text of the agreement, ACTA aims to “combat” the “proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material”. ACTA also attempts to “address the problem of infringement of intellectual property rights, including infringement taking place in the digital environment … in a manner that balances the rights and interests of the relevant right holders, service providers, and users”. The substance of ACTA has been criticised by numerous academics, experts, and non-governmental organisations. Among other criticisms, it has been suggested that certain provisions of ACTA, if implemented, will negatively impact freedom of expression.
Rather than focus on the substance of ACTA, however, this case study seeks to highlight an issue with the process through which ACTA was negotiated. Formal negotiations regarding ACTA were launched in 2008. Representatives of governments participated in eleven rounds of negotiations before the text of the agreement was finalised in November 2010. The participating parties adopted a secretive approach to negotiating ACTA. The public was largely shut out of the process, particularly in the early stages of negotiations.
This secretive approach was publicly justified on the basis that it is “accepted practice during trade negotiations among sovereign states not to share negotiating texts with the public at large, particularly at earlier stages of the negotiation”. As stated by the Office of the United States Trade Representative, “This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues.” The European Commission echoed this view, stating that, “For reasons of efficiency, it is only natural that intergovernmental negotiations dealing with issues that have an economic impact, do not take place in public and that negotiators are bound by a certain level of discretion.”