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Europe Steps Up UK Legal Action over Phorm and Online Privacy

Posted: 29th Oct, 2009 By: MarkJ
phorm logoThe European Commission (EC) today moved to the second phase of an infringement proceeding against the UK concerning a lack of full privacy and personal data protection. The move is related to the government’s inability to clamp down on Phorm , which controversially worked with broadband ISPs to monitor what websites you visit for use in targeted advertising campaigns.

Last year BT angered many when it emerged that they had run two secret trials of Phorm's technology on customers, without their consent, during 2006 and 2007. So began a lengthy campaign against Phorm and related technologies, which ultimately resulted in several major UK ISP supporters putting their plans to use the technology on ice.

European laws state that EU countries must ensure the confidentiality of people's electronic communications like email or internet browsing by prohibiting their unlawful interception and surveillance without the user's consent. These rules have still not been fully put in place in the national law of the UK.

EU Telecoms Commissioner, Viviane Reding, said:

"People's privacy and the integrity of their personal data in the digital world is not only an important matter, it is a fundamental right, protected by European law. That is why the Commission is vigilant in ensuring that EU rules and rights are put in place.

Ensuring digital privacy is a key for building trust in the internet. I therefore call on the UK authorities to change their national laws to ensure that British citizens fully benefit from the safeguards set out in EU law concerning confidentiality of electronic communications.”

The legal action was launched following the EC's inquiry into the response given by the UK authorities to UK citizens' complaints about the use of behavioural advertising and deep packet inspect technology by ISPs (i.e. Phorm). They state that the UK is still failing to comply with EU rules protecting the confidentiality of electronic communications like email or surfing the internet.

This all follows a thorough analysis of the UK authorities' lacklustre response to the letter of formal notice – the first phase in an infringement proceeding – sent to them by the Commission on 14th April 2009.
The Commission has identified three gaps in the existing UK rules:

• There is no independent national authority to supervise interception of communications, although the establishment of such authority is required under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications.

• The current UK law – the Regulation of Investigatory Powers Act 2000 (RIPA) – authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. These UK law provisions do not comply with EU rules defining consent as freely given specific and informed indication of a person’s wishes.

• The RIPA provisions prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas the EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not.
The UK has been given two months to reply to this second stage of the infringement proceeding. If the Commission receives no reply, or if the response presented by the UK is not satisfactory, the Commission may refer the case to the European Court of Justice.
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