Europe starts legal action against UK over internet snooping
The European Commission has today started legal action against the Government over its failure to protect the privacy of British internet users.
The case was sparked by BTs covert use of the controversial user-tracking technology Phorm on customers using its internet service in 2006 and 2007.
Phorm, a UK-based company founded in 2004, monitors users favourite sites and searches, and uses the information to deliver individually targeted advertising.
One of its most outspoken opponents is Sir Tim Berners-Lee, generally credited with inventing the web.
The European Commission has been concerned about the way Phorm was secretly tested in the United Kingdom. Last year, the Government backed Phorm after a complaint by Brussels.
But today Viviane Reding, the European Union's Commissioner for Information Society and Media, announced the first stage of legal action, saying that the Government had failed to implement European laws that protect internet users.
"Technologies such as internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules, the Commissioner said. These rules are there to protect the privacy of citizens and must be rigorously enforced by all member states.
BT has already admitted that it conducted trials of Phorm without users consent in 2006 and 2007. A further, invitation-only, trial was conducted last year.
Ms Redings statement continued: 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.
Ms Redings contention is that UK laws must be tightened to protect consumers and comply with the ePrivacy Directive, which the UK Government signed up to in 2002. It came into force at the end of October 2003.
After receiving "hundreds of complaints" from UK citizens over the Phorm trials, EC officials wrote to Whitehall asking whether UK law adequately protected personal data.
"Following an analysis of the answers received, the commission has concerns that there are structural problems in the way the UK has implemented EU rules ensuring the confidentiality of communications, the Commission said.
Although UK law makes it an offence to unlawfully intercept communications, the scope of this offence is limited to "intentional" interception only.
"Moreover, according to this law, interception is also considered to be lawful when the interceptor has 'reasonable grounds for believing' that consent to interception has been given.
City of London police refused last year to act over BT and Phorm's trials, insisting that BTs customers had given their "implied consent" and that the companies had a lack of criminal intent.
The British Government should have fined these companies, an EC spokesman said today.
The Commission has now given the Government two months to respond to todays infringement proceeding - the first stage of a legal process which could end up in the European Court of Justice for an alleged breach of the directive.
The directive states that user consent must be freely given, specific, and informed, and it requires EU member states to impose sanctions in the event of breaches of the rules.
The Department of Business, Enterprise and Regulatory Reform, which along with the Home Office received the Commissions infringement notice today, said it would respond within the two-month time frame.
If no satisfactory reply is received by the Commission within two months, it may decide to issue a reasoned opinion, the next stage of the infringement process.
Brussels is also concerned that the UK has no regulatory body charged with controlling interceptions of communications by private companies. The UKs Information Commissioner does not any power to enforce the Regulation of Investigatory Powers Act (RIPA), which governs interception, and the Office of the Surveillance Commissioners is mandated only to investigate interceptions by public authorities.
Ms Reding reinforced her stern message to the British Government in her weekly video message, delivered via the European Commissions website.
Privacy is a particular value for us Europeans; a value reflected in European laws for many years, she said.
However, in spite of the many advantages of technological development, there is an undeniable risk that privacy is being lost to the brave new world of intrusive technologies. On the global information highways, personal information is increasingly becoming the new currency. And I believe that Europeans
must have the right to control how their personal information is used.
European privacy rules are crystal clear, she said. A person's information can only be used with their prior consent. We cannot give up this basic principle, and have all our exchanges monitored, surveyed and stored, in exchange for a promise of more relevant advertisements! I will not shy away from taking action where an EU country falls short of this duty.
Phorm has already been investigated by the police and the Government over privacy concerns. It has attracted interest from UK internet service providers including BT, Virgin Media and TalkTalk, although no company has yet fully introduced the system.
Sir Tim spoke out passionately against Phorm at a meeting in the House of Commons in March this year. "It is very important that when we click, we click without a thought that a third party knows what we're clicking on," he said. "'What is at stake is the integrity of the internet as a communications medium. It's important there should be no snooping on the internet."