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European Law Journal, Vol. 19, No. 6, November 2013, pp. 759–778.
© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

ACTA and the Enforcement of Copyright in Cyberspace: the Impact on Privacy
Iryna Ievdokymova*

Abstract: As the reach of the Internet expands, governments increasingly seek to introduce initiatives aimed at controlling individuals’ online activity. One such initiative, aimed, inter alia, at introducing enhanced online copyright enforcement standards, is the Anti-Counterfeiting Trade Agreement (ACTA). The paper analyses a possible effect of Art. 27(3) of the agreement on the data protection and privacy rights, as spelled out in the EU legal order. Firstly, the EU legal framework on Internet surveillance for copyright enforcement will be addressed. Next, the principles and safeguards applicable to data processing in the context of communications surveillance will be illustrated with reference to the jurisprudence of the European Court of Human Rights. It will be argued that ACTA, if interpreted broadly and implemented without safeguards, would provide an incentive for graduated response systems, which, as it will be shown on the example of the French graduated response, may trump privacy rights on a massive scale.

I

Introduction

Could cyberspace be considered a zone of liberty, for the most part unrestrained by government regulation and intrusion into individual rights and freedoms? On the one hand, the Internet has served to expand the boundaries of information sharing to an unprecedented degree. However, as the dividing line between the online and ‘real’ world is becoming ever vaguer, initiatives affecting individuals’ activities in cyberspace are intensified as well. A recent such initiative, the Anti-Counterfeiting Trade Agreement (ACTA), has as one of its