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UK in Euro Dock Over Privacy and Phorm Failings.

After a year-long investigation into aspects of internet privacy, the European Commission ("the Commission") has referred the UK to the European Court of Justice ("ECJ"), alleging failure to meet the requirements set by the European Directives on Data Protection, and Privacy and Electronic Communications ("ePrivacy").

The Commission investigation was carried out in response to complaints made by UK internet users concerning the use, by BT (the nation's largest broadband provider), of technology which tracked the surfing habits of customers for targeted advertising purposes.

The Commission's case focuses on the UK Government's regulation of the use of such tracking technology which, in the Commission's view, does not currently meet the Government's obligations under EU law.

EU law in this area - the European ePrivacy and Data Protection Directives - requires the establishment of a regulatory authority tasked with ensuring that all interceptions of users' communications are within the boundaries of the law. However, this is a requirement yet to be implemented in the UK.

The Commission had twice written to the UK Government requesting that UK privacy laws (the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 1998) be brought into line with EU law, however, no action was taken by the UK. If the ECJ upholds the Commission's case, the UK Government could be liable to pay fines, potentially amounting to millions of pounds per day until UK law is brought in line with the EU law.

The Commission also believes that the UK's stance on the interception of communications is not strict enough. The Regulation of Investigatory Powers Act 2000 currently permits the interception of communications where there are "reasonable grounds" for believing that the person concerned has given their consent. However, the Commission does not believe that this provision complies with the EU law, which defines consent as "freely given, specific and informed indication of a person's wishes".

Furthermore, EU law orders that penalties be imposed for all unlawful interceptions of communications - a requirement much wider than reflected in current UK law, which requires the interception to be 'intentional' before any sanction can be imposed.

Whilst the Home Office expressed their disappointment at the Commission's decision to refer the case to the ECJ, they noted that changes to the law were currently being discussed to address the Commission's concerns.

As technology plays an ever-increasing role in all aspects of life, the rights of privacy safeguarding users has come under increasing scrutiny. Accordingly, it will be of some interest to see whether changes to UK law can produce real improvement in protection.

MacRoberts advises on all aspects of privacy and data protection.


The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

[c] MacRoberts 2010

Mr David Flint


30 Simple Street






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Publication:Mondaq Business Briefing
Date:Oct 6, 2010
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