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EU Phorm Letter - UK Government Fails to Respond

Posted: 13th Aug, 2008 By: MarkJ
It was widely reported last week that Viviane Reding, a prominent European commissioner, had given the UK government until the end of August to respond to an EU letter questioning the legality of Phorm's controversial advertising system (here). However, the BBC's original report was incorrect and the deadline for a response has already come and gone.

The Commission reportedly sent its letter on 30th June and not mid-July 2008 as had been previously reported, a fact confirmed by the Department for Business, Enterprise and Regulatory Reform (BERR) - "We haven't responded yet," said a spokeswoman. It's understood that a formal response is still being worked on, which isn't surprising given the complexity of this matter.

The Register has reportedly managed to get its hands on the EU's letter, which has been posted in full here. However, those wishing the cut out the political jargon will be pleased to hear that it ends in a summary of five simple questions:

I would therefore be grateful to receive the response of the United Kingdom authorities on the following questions:

  1. What are the United Kingdom laws and other legal acts which govern activities falling within the scope of Articles 5(1) and 6 of Directive 2002/58/EC on privacy and electronic communications and Articles 6, 7 and 17(1) of Directive 95/46/EC?


  2. Which United Kingdom authority(-ies) is (are) competent (i) to investigate whether there have been any breaches of the national law transposing each of the above-mentioned provisions of Community law arising from the past trials of Phorm technology carried out by BT and (ii) to impose any penalties for infringement of those provisions where appropriate?


  3. Have there been any investigations about the past trials of Phorm technology by BT and what were their results and the conclusions of the competent authority(-ies)? Are there ongoing investigations about possible similar activities by other ISPs?


  4. What remedies, liability and sanctions are provided for by United Kingdom law in accordance with Article 15(2) of the Directive on privacy and electronic communications, which may be sought by users affected by the past trials of the Phorm technology and may be imposed by the competent United Kingdom authority(-ies) including the courts?


  5. According to the information available to the United Kingdom authorities, what exactly will be the methodology followed by the ISPs in order to obtain their customers' consent for the deployment of Phorm technology in accordance with the relevant legal requirements and what is the United Kingdom authorities' assessment of this methodology?
Given the urgency of this matter I would highly appreciate receiving your reply within one month of receipt of this letter.

Yours sincerely,

Fabio Colasanti

Meanwhile the Information Commissioners Office (ICO) recently sent another letter to BT concerning its secret 2006/2007 Phorm trials, which appears to suggest that the ICO is happy for laws to be breached so long as nobody gets hurt:

Whilst it does appear likely that a technical breach of the [PECR] Regulations occured in the 2006 and 2007 trials, there is no evidence to suggest significant detriment to the individuals involved. We acknowledge the difficulties that you have highlighted in providing meaningful information to customers about small scale, technical trials in circumstances like this.

By that logic we should all be able to go over the speed limit in our cars, just so long as you don't crash.
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