One of the key problems with ACTA is the lack of transparency during its negotiation. That this is becoming a big issue in Europe is shown by the fact that the European Commission has tried to dispose of the question twice -- first in its "10 myths about ACTA", which I discussed recently on Techdirt, and now with a page entitled "Transparency of ACTA negotiations": This factsheet aims at clarifying the way the European Parliament, civil society and all stakeholders have been informed and involved in the negotiation process. Note that it insists all stakeholders were "informed and involved". I'd like to explore that a little.
One important group are the MEPs (Members of the European Parliament), since they are the representatives of the 500 million citizens in the European Union. The Commission spells out exactly how often they communicated with this group of politicians:
During the ACTA negotiations, the European Commission has shared the following documents with the European Parliament (see annex for full list of documents):
7 successive draft texts of the agreement
3 detailed written reports on the negotiation rounds
14 notes and internal working papers But there's a problem with those documents, as the Pirate Party MEP Christian Engström highlighted in a blog post back in 2010: MEPs weren't allowed to pass on any information they obtained. The ACTA negotiators from the Commission came to the European Parliament today, to inform the Parliament about what happened in the last round of negotiations in Luzern.
However, the meeting where the information was to be given was declared “in camera”, i.e.: closed to the public.
At the meeting, I asked if this meant that there were restrictions on how the information given could be used and spread. At first the Commission seemed unwilling to answer this question with a straight yes or no, but after I had repeated the question a number of times, they finally came out and said that I would not be allowed to spread the information given. In fact, Engström pointed out that the situation was even worse: According Article 218(10) of the Lisbon Treaty, the Commission has a duty to keep the European Parliament “immediately and fully informed at all stages of the procedure”.
To give oral information in a closed meeting, with no documents at all handed out, hardly qualifies as keeping the Parliament “fully informed”.
It is obvious that the Commission has no intention of living up to its obligations under the Treaty when it comes to informing the Parliament.
That is disgraceful. So according to an MEP who was theoretically privy to at least some of those drafts, reports and internal working papers supposedly available, the Commission failed even to inform the European Parliament properly. Moreover, what information there was, could not then be passed on to the people the MEPs were representing.
But there was another route for information to be conveyed to them: via non-governmental organizations (NGOs). Here's the kind of transparency the European Commission says it provided to those groups:
the team of negotiators have invited, met and extensively debriefed NGOs, academia and representatives from political parties such as the Pirate Party during the last four rounds of negotiations in Wellington, Luzern, Washington and Tokyo. These meetings took place on side events during the negotiation sessions. The stakeholders had access to the negotiators' teams and issues and concerns raised by Civil Society were discussed and explained.
That sounds pretty good, but as Techdirt reported about the last of those meetings, the reality was rather different:
For the past month, negotiators had been telling the NGOs that the meetings were starting September 27th. Then, they suddenly announced that it would actually start September 23rd, and the NGO meeting would be on the 24th. Except, by the time they announced it, it was too late for most representatives to get to Japan in time (many had booked flights for the following week), and the Japanese government refused to change the time of the meeting. Then, finally, when the meeting was held and only 2 or 3 NGOs were actually able to make it, it wasn't so much a "meeting" as it was lunch -- and, even then, all the ACTA negotiators sat together, leaving no room for the NGOs.
So, it looks like the only channels of communication that the public had were direct ones. Here's what happened there according to the European Commission:
4 stakeholders' meetings -- open to all citizens -- were organised in Brussels:
23 June 2008
21 April 2009
22 March 2010 and
25 January 2011 That's it: one opportunity a year for 500 million people somehow to find out everything that had happened with ACTA -- based on the five documents that were publicly released, three of which were "speaking points" -- and to make their own views heard.
The European Commission is obviously aware that this is a joke, and desperately tries to mitigate its blatant failure to involve ordinary citizens by adding: During the whole negotiation process, the European Commission has not recruited any consultants, be it from industry or from NGOs or civil society. The European Commission denies having provided any kind of preferential access to information to any group of stakeholders, be it from industry, trade unions or from other stakeholders. Even if it's true the EU negotiators didn't provide such preferential access, that's irrelevant, because the US side did: Apart from the participating governments, an advisory committee of large US-based multinational corporations was consulted on the content of the draft treaty, including the Pharmaceutical Research and Manufacturers of America and the International Intellectual Property Alliance (which includes the Business Software Alliance, Motion Picture Association of America, and Recording Industry Association of America). A 2009 Freedom of Information request showed that the following companies also received copies of the draft under a nondisclosure agreement: Google, eBay, Intel, Dell, News Corporation, Sony Pictures, Time Warner, and Verizon. So the European Commission's claim that "all stakeholders have been informed and involved in the negotiation process" is true only at the most superficial of levels. Yes, MEPs were told minimal information -- but weren't allowed to pass it on to the people they represent; yes, NGOs were able to sit in the same room as the negotiators for an hour or two -- if they managed to overcome the series of obstacles designed to stop them getting there on the right day; yes, members of the public could express their views – but only once a year, by travelling to Brussels at their own expense, and without access to the vast majority of relevant documents.
In reality, the only stakeholders that were truly informed and involved were the copyright industries who were present right from the start. ACTA is simply the implementation of their one-sided demands without any meaningful checks or balances for the benefit of the billion people who will be most affected by it, but who were consistently ignored during its negotiations.