The iiNet case is just a minor skirmish, the big battle is ACTA

David Heath
Sunday, 08 November 2009 06:25

IT Policy - Regulation

Commenting on this, Gwen Hinze of the Electronic Frontier Foundation wrote "Let's reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

"Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP "best practice" in 2005. Indeed, the MPAA and the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US's major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.

"How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen."

Kim Weatherall, writing in the LawFont blog notes, "From an Australian perspective, I suspect that the temptation for negotiators will be to say that since we are already committed to such rules in the AUSFTA, there is 'no harm' in signing up to similar ACTA terms. I think that would be a serious mistake. When Australia signed to such terms in AUSFTA, it did so in a trade deal, where there were other 'benefits' (however illusory some might have been). And it retains the freedom to step away from the AUSFTA at some future point if the costs outweigh the benefits. Signing up to such terms in an ACTA would be agreeing that these are to be general international standards: removing any remaining flexibility we have and giving a whole new set of people the right to complain if we want to resile."

There is also extensive commentary from Internet NZ and Electronic Frontiers Australia.  All of it strongly negative.

Nic Suzor, writing on the EFA site notes that "DFAT has also said that they are participating in the ACTA to "be in the tent", and have not yet determined to sign the ACTA; politically, though, it may be quite difficult for Australia to avoid signing a treaty that we have been actively negotiating."

Although the Australian Constitution has no guarantee of the "presumption of innocence," such a legal concept is well-enshrined in various UN charters and is certainly an underlying tenet in Australia's legal system.  If enacted in Australia, these ACTA-derived laws will totally remove any presumption of innocence and further will force a third party (the ISP) to enact the punishment; whether or not ultimate guilt could be established.  Currently this is the core argument in the iiNet case before the New South Wales courts, but the case will be rendered entirely moot if these rules are enacted in Australia.

Perhaps this is one of the reasons that successive Federal Governments have never enacted a Bill of Rights.