UK infringes Data Protection laws
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12th April 2009
The UK is in trouble yet again for
infringing the EU Directive on
privacy and electronic communications which requires EU Member States
to ensure confidentiality of the communications and related traffic
data by prohibiting unlawful interception and surveillance unless the
users concerned have consented (Article 5(1) of Directive 2002/58/EC.
The EU Data Protection Directive specifies
that user consent must be
freely given specific and informed (Article 2(h) of Directive 95/46/EC.
In addition Article 24 of the Data Protection Directive requires Member
States to establish appropriate sanctions in case of infringements and
Article 28 says that independent authorities must be charged with
supervising implementation. These provisions of the Data Protection
Directive also apply in the area of confidentiality of communications.
According to the Commission the UK has
failed to adhere to this and has decided enough is enough.
For more than a year now the Commission
has received several questions
from UK citizens and UK Members of the European Parliament concerned
about the use of a behavioural advertising technology known as Phorma
by Internet Service Providers in the UK.
Phorm technology targets customers web
surfing to determine users
interests and then delivers targeted advertising to users when they
visit certain websites. The crucial test is that BT admitted that it
had tested Phorm in 2006 and 2007 without informing customers involved
in the trial. It is in the absence of such testing that resulted in a
number of complaints to the UK data protection authority - the
Information Commissioner and to the UK police.
The Commission had expressed a number of
concerns that there were
structural problems in the way the UK has implemented EU rules ensuring
the confidentiality of communications.
Under UK law, it is an offence to
unlawfully intercept communications,
the offence is an arrestable offence. However, the scope of this
offence is limited to intentional interception only. BT and other ISPs
were using these techniques to market a service more effectively.
Interception is considered to be lawful
when the interceptor has
reasonable grounds for believing that consent to interception has been
given. So a user must give their consent. The Commission was also
concerned that the UK did not have an independent national supervisory
authority dealing with such interceptions.
The UK has two months to reply to this
first stage of an infringement
proceeding, the letter of formal notice sent today. If the Commission
receives no reply, or if the observations presented by the UK are not
satisfactory, the Commission may decide to issue a reasoned opinion
(the second stage in an infringement proceeding). If the UK still fails
to fulfil its obligations under EU law after that, the Commission will
refer the case to the European Court of Justice.
Michael Coyle is a
solicitor advocate with extensive experience
in intellectual property law, media law, commercial law and information
technology law. For more information please contact:- firstname.lastname@example.org
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Article Published/Sorted/Amended on Scopulus 2009-05-19 15:50:16 in Legal Articles