The European Commission (EC) has opened an infringement proceeding against the UK after a series of complaints by Internet users, and extensive communication with UK authorities, about the use of Phorms behavioural advertising technology by broadband Internet Service Providers (ISPs). The move follows warnings last month by the EU that it could extend its investigation of Deep Packet Inspection (DPI) technology to include Phorm (original news).


Phorm works with UK ISPs, such as BT (WebWise), to monitor what websites you visit for use in targeted advertising campaigns, though its methods have raised more than a few fears about invasions of privacy. Both Virgin Media and TalkTalk (The Carphone Warehouse) are also known to have been in discussions with Phorm, although to date neither has introduced it. BT angered many when it emerged in early 2008 that they had run two secret trials on customers, without their consent, during 2006 and 2007.

The new EC proceeding will address several problems with the UK's implementation of EU ePrivacy and personal data protection rules, under which EU countries must ensure, among other things, the confidentiality of communications by prohibiting interception and surveillance without the user's consent. These problems emerged during the Commission’s inquiry into the UK authorities’ action in response to complaints from internet users concerning Phorm.


The Commission are known to have written several letters to the UK authorities since July 2008, asking how they have implemented relevant EU laws in the context of the Phorm case. The EU appears to have been unhappy with what it has been told and has concerns about structural problems in the way the UK has implemented EU rules ensuring the confidentiality of communications.

Under UK law, which is enforced by the police, it is an offence to unlawfully intercept communications (only applies to intentional interception). However interception is considered to be lawful when the interceptor has ‘reasonable grounds for believing’ that consent has been given.

The City of London Police dropped an investigation of Phorm last year, specifically BT’s secret 2006/2007 trials, because it would have cost too much money, been too complex and those taking part in the trials were curiously deemed to have given their “implied consent”. The Commission is also concerned that the UK does not have an independent national supervisory authority dealing with such interceptions.

The UK has now been given two months to reply to this first stage of an infringement proceeding, with a letter of formal notice being sent today. Lack of a satisfactory reply will result in the proceedings being taken further and could ultimately lead to the EU referring the case to the European Court of Justice.

UPDATE @ 15th April 08:42am:

Phorm has offered the following statement in response to the EU's investigation of their service:


Consumer Focus's Linda Weatherhead has also added her thoughts on the matter:


Elsewhere the NoDPI anti-phorm campaign site appears to confirm that both LiveJournal and Amazon have now opted-out of having their websites tracked by Phorm's BT implementation (WebWise).

UPDATE @ 15th April 1:02pm:

Added a video of the EU's original announcement.