Could the Recent German Court Ruling Affect CETA and TPP?

By Drew Wilson

Last week, a German court ruled that Internet access is “essential” for every day life. If someone’s access is disrupted, they are entitled to compensation. While it may sound mildly interesting on the surface, there’s the fact that current trade agreements being negotiated could allow rightsholders to disconnect users after repeated infringement. Could this represent a conflict on the horizon?

A report from Reuters notes a very interesting ruling was made in Germany. A man lost the ability to connect to the Internet on his DSL connection for two months in late 2008 and early 2009. Because, under German law, loss of an essential service means that person is entitled to compensation, the question was whether or not the Internet is an essential service. The court agreed with him and said that the Internet is an essential part of every day life.

Snippet from the Reuters report:

“The Internet plays a very important role today and affects the private life of an individual in very decisive ways. Therefore loss of use of the Internet is comparable to the loss of use of a car,” a court spokeswoman told Germany’s ARD television.

For most reports we’ve seen, this may have just seemed like a quirky, but interesting ruling. That, of course, misses a more fundamental problem that could crop up in the future.

The Trans-Pacific Partnership (TPP) contains language that says that repeated accusations of infringement could lead to disconnection. So, if one were to be disconnected from the Internet thanks to the laws pushed by this particular trade agreement, what is there to stop someone from at least demanding compensation for the loss of service? At the very least, German ISPs would have a financial incentive to stop a three strikes law from becoming part of law in that country. If rightsholders plan on disconnecting thousands of alleged file-sharers, then the payouts taken by ISPs could be quite large.

While there were only unconfirmed reports that the Comprehensive Economic and Trade Agreement (CETA) could have similar language, the agreement is reportedly only weeks away from completion. If there are no more delays, however unlikely that is, then we will eventually be able to find out whether or not CETA also has language that says that alleged copyright infringers could be disconnected after multiple accusations.

While some of this is speculation, German citizens might take comfort that should a three strikes provision makes its way into CETA and onto the forefront, there’s already at least one ruling that could make implementing such a law problematic.

Drew Wilson on Twitter: @icecube85

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