EU to open proceedings against the UK

The European Commission has announced its intention to open an infringement action against the UK Government after complaints from UK Internet users about infringments of their privacy through the use of targetted advertising.

The actions result from the testing of the Phorm process by BT earlier in the year. Problems arose when users complained that they were not aware of the trial or the use to which their web usage would be put. Behavioural advertising used data collected by analysis of web traffic patterns to select advertising and push this to the end user. Users complained that the analysis was an infringement of privacy.

“Technologies like internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules. These rules are there to protect the privacy of citizens and must be rigorously enforced by all Member States,” said EU Telecoms Commissioner Viviane Reding. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications. I call on the UK authorities to change their national laws and ensure that national authorities are duly empowered and have proper sanctions at their disposal to enforce EU legislation on the confidentiality of communications. This should allow the UK to respond more vigorously to new challenges to ePrivacy and personal data protection such as those that have arisen in the Phorm case. It should also help reassure UK consumers about their privacy and data protection while surfing the internet.”

It is an offence to intentionally intercept communications in the UK. The key word there is ‘intentionally’. Of course, there are circumstances where interception can be lawful and these are controlled under the Regulation of Investigatory Powers Act and require warrants to be issued - unless it can be reasonably assumed that the subject had given consent. It is the giving of consent that is the issue in relation to behavioural advertising - users had complained that they were unaware of what was being done and that their ISP had failed to advise them of trials taking place.

The indication of the European Commission notice is that the Commission believes that the UK has not correctly implemented European Data Protection laws. That will mean some re-drafting is required - but, of course, we will have to await the outcome of the Commission proceedings before we see actions in the UK. It would seem likely that the role of the Information Commissioner would be extended to cover any required changes.