European Commission begins legal action on Phorm
The European Commission has begun legal proceedings against the UK over the behavioural advertising company Phorm.
In a statement, the Commission said that the “proceeding addresses several problems with the UK’s implementation of EU ePrivacy and personal data protection rules, under which EU countries must ensure… the confidentiality of communications by prohibiting interception and surveillance without the user’s consent”.
Viviane Reding, EU telecoms commissioner, said: “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.
“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.”
Phorm technology works by constantly analysing customers’ web surfing to determine users’ interests and then delivering targeted advertising to users when they visit certain websites.
The company came under fire last April when BT admitted that it had tested Phorm in 2006 and 2007 without informing customers involved in the trial. BT then carried out a new invitation-based trial of the technology in October-December 2008.
In September 2008, the UK government confirmed its view that Phorm was legal, following a request from the European Union (see UK Government Considers Phorm “Lawful”).
However, this is clearly not enough for the Commission, which has given the UK two months to reply to this first stage of infringement proceedings.
If the Commission receives no reply, or if the reply is not satisfactory, it 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 case will be referred to the European Court of Justice.