The European Commission has launched infringement proceedings against the UK, claiming the country is not sufficiently complying with European data-protection laws.
The action was initiated on Tuesday, following complaints over BT's trials--carried out in 2006 and 2007 without user consent--of technology from the behavioral advertising company Phorm. The technology allows an Internet service provider such as BT to monitor its customers' surfing habits, so that it can deliver targeted advertising to each user.
In June, the Information Commissioner's Office (ICO), which has responsibility for enforcing UK data-protection laws, said it would not launch an investigation into the BT trials. The commission subsequently told ZDNet UK that it was investigating the trials, but would not challenge the UK's decision to take no action against BT and Phorm unless it was clear that a "serious mistake" had been made.
However, in February the commission threatened formal action against the UK, saying the government had failed to "provide a satisfactory response to the commission's concerns on the implementation of European law in the context of the Phorm case."
That formal action was launched on Tuesday. In a statement, the commission said the proceedings addressed "several problems" with the UK's implementation of EU e-privacy and personal data-protection rules. Under those rules, EU countries have to ensure the confidentiality of communications by prohibiting the interception and surveillance of such communications without the user's consent.
"Technologies like Internet behavioral advertising can be useful for businesses and consumers, but they must be used in a way that complies with EU rules," telecoms commissioner Viviane Reding said in the statement. "These rules are there to protect the privacy of citizens and must be rigorously enforced by all member states."
Reding called on the UK authorities to change national laws, and to make sure national authorities have the powers and sanctions at their disposal to enforce EU legislation on the confidentiality of communications.
"We need a change of (UK) legislation to make sure something like this (BT's secret trials) cannot happen," a spokesman for Reding's office told ZDNet UK. "This would need to happen rather quickly. (The UK government) has delivered us political assurances that they are aware of the problem and want to address it, but what we are looking for is a legal assurance. We cannot be satisfied with just nice words."
The spokesman said the commission was neutral about Phorm itself, as such services can be useful.
"But that is something the consumer should decide," the spokesman said. "If the consumer does not (opt in), or they do not say anything, then they should not expect to be targeted in such a way. We have serious doubts whether this European principle is properly enforced and respected in the UK."
The UK authorities now have two months in which to respond to the commission. If the commission is not satisfied with that response, it will then take the case into its second phase by issuing a "reasoned opinion." The UK would then have another two months to change its legislation to reflect the EU principles. If it fails to do this, the commission said that the case will be taken to the European Court of Justice.
Asked for comment, the ICO gave ZDNet UK a statement in which it said: "The ICO regulates and enforces the Data Protection Act, Freedom of Information Act, and Privacy and Electronic Communications Regulations. These infringement proceedings from the EU appear to relate to the interception of communications, which is not part of the ICO's remit. Interception of communications is covered by the Regulation of Investigatory Powers Act (RIPA), which is separate to the Data Protection Act and not regulated by the ICO."
The Home Office, which has responsibility for RIPA, declined to comment, saying it was not a matter for that office. The Department for Business, Enterprise and Regulatory Reform (BERR) had not replied to a request for comment at the time of writing.
David Meyer of ZDNet UK reported from London.
BT is to perform another trial of Phorm's ad-serving technology, after delays of more than half a year.
Phorm's technology, which BT will use under the brand of "Webwise," has attracted protests from peers, politicians, technologists and think tanks, who have expressed concerns over legal and privacy issues. The technology is also the subject of a probe by the European Commission.
Phorm's ad-serving technology works by assigning a user a unique identifier, through which the user's browsing habits are observed so as to target advertisements at them.
BT will commence the third trial of the technology on Tuesday, a BT representative said Monday. "Around 10,000 customers will be invited to opt into the trial when they commence their browsing session," the representative said. "We will issue invitations at random."
The interstitial landing page will let customers accept or decline the invitation, or ask for more information about the trials, the representative added.
BT announced a trial of Phorm's technology in April, but then delayed the trial, apparently due to technical issues. The BT representative declined to say what those issues had been.
"We can't go into the technical issues; they are confidential between us and Phorm," said the representative. "We're not going to be peering behind the curtain. You can assume, as we're going ahead with the trials, that we've resolved any outstanding issues to our entire satisfaction."
The representative said BT had been exploring network-based ways to track anonymized users without having to use cookies, but that this had not been the reason for the delay, contradicting earlier BT statements.
"In parallel, we have continued to explore network-based options," said the representative. "The trial will not involve network-based options."
The trial will follow previous trials which took place in fall 2006 and summer 2007. These earlier trials caused an outcry among U.K. privacy campaigners (click here for similar U.S.-based concerns), as they were conducted without gaining the consent of customers and without their knowledge. Phorm's opponents claimed the trials were illegal under the Regulation of Investigatory Powers Act (RIPA) and the Data Protection Act.
One opponent of the trials, the Foundation for Information Policy Research (FIPR) think tank, still has legal concerns about the upcoming trial. Richard Clayton, FIPR treasurer, told ZDNet.co.uk on Monday that the organization was concerned not only about the privacy implications but also about interception and copyright issues.
At a protest against the trials of the ad-serving technology, peers, protesters, and BT shareholders aired their grievances.
"We don't see how an opt-in system can work when one adult in a house can opt in on behalf of another adult or children in the house, or children can opt in on behalf of their parents," said Clayton. "We're also surprised they are going ahead with the trials because of the interception element."
Clayton said that, to be legal under RIPA, both sides of the interception have to give their consent. As the other end of the interception would be search sites like Google or Yahoo, or Web sites such as FIPR's, Clayton said he failed to see how consent could be gained by all parties.
However, Kent Ertugrul, chief executive of Phorm, told ZDNet.co.uk on Monday that he expected FIPR's legal concerns to be allayed.
"Over the course of several months, the people at FIPR have expressed concerns and virtually all of them have turned out to be unfounded," said Ertugrul. "Over the past few months, a number of people have raised concerns and we have addressed every point that has been raised."
Ertugrul said that Phorm had been working with the European Commission in its probe into the legality of Phorm's technology, and said he was confident that the Commission would be satisfied.
"There is a pattern that people become more confident through engagement with the technology, including the (Commission)," said Ertugrul. "We're confident that people will not only tolerate it but welcome (Phorm) as a big step forward. The fact is (that Phorm) is something that is being welcomed by all of the Web sites we've spoken with and with advertisers. Market research by ISPs suggests (Phorm) is welcomed by consumers."
Tom Espiner of ZDNet UK reported from London.
- prev
- 1
- next
