NEWS29 October 2009
UK— The European Commission has launched the second phase of infringement proceedings against the UK over the way it handled tests of Phorm’s online targeted advertising software.
The commission says it will issue the UK government with a “reasoned opinion” setting out its case that there are “three gaps in existing UK rules governing the confidentiality of electronic communications”.
It began investigating following complaints about BT’s secret trials of Phorm’s software, which tracks the websites a user visits in order to match them with relevant advertising. The UK government had looked at the technology following outcry over the tests but ruled it legal in the UK on the condition that customers of ISPs were made fully aware that they were being profiled and were given the option to opt out at anytime.
The EC launched the first stage of its infringement proceedings in April, at which time it flagged “concerns that there were structural problems in the way the UK had implemented EU rules ensuring the confidentiality of communications”.
Dissatisfied with the UK government’s response to this first stage, the EC has now set out its complaint in detail. Firstly, it says, there is “no independent national authority to supervise interception of communications”, even though such authority is required under the EU’s ePrivacy and Data Protection Directives.
The EC also says UK rules on interception – which is authorised with the consent of individuals and in cases where the person intercepting the communications has ‘reasonable grounds for believing’ that consent has been given – do not comply with EU rules which define consent as “freely-given, specific and informed indication of a person’s wishes”.
Finally, the EC takes the UK government to task for only providing sanctions in cases where unlawful ‘intentional’ interception has occurred, whereas EU law requires Members States to ensure sanctions against any unlawful interception regardless of whether it has occurred intentionally or not.
EU telecoms commissioner Viviane Reding (pictured) said: “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.”
A spokesman for the Home Office said: “We are firmly committed to protecting users’ privacy and data. We are considering the commission’s letter and will respond in due course.”
The UK has two months to reply. If the EC again feels that its response is unsatisfactory the case may be referred to the European Court of Justice.