UK to be tried by European Court for Failing to Implement Data Protection Rules

The European Commission has commenced ‘infringement proceedings’ against the UK government, alleging it has breached EU data protection laws. The decision follows a year-long investigation into whether UK law provides sufficient safeguards against the interception and surveillance of internet traffic.

Concerns were initially raised when the EC received complaints from citizens about a British telecom firm’s use of behavioural advertising. In 2006-2007, BT tested behavioural advertising technology on its broadband users, without the consent of the customers involved in the trial. The advertising system, known as Webwise, was invented by Phorm – a US-based company which specialises in advertising software. Once an ISP has signed up to the service, Webwise is able to ‘trawl’ sites visited by its users in order to build up a profile of the users’ interests and habits. The information can be exploited by advertisers who are then able to target customers on the sites they visit thereafter. What sets Phorm’s technology apart from other behavioural advertising systems, is that it works in conjunction with ISPs, rather than simply relying on data shared between associated websites. Although BT later rejected the technology, and no other UK ISPs are known to have used it since, the UK government failed to give a satisfactory verdict on the legality of the BT trials. It did, however, conclude that the technology itself is legal so long as users have actively given their consent, and web-sites can easily opt out of the system.

Having considered the situation in the UK, the Commission concluded that data protection in the UK is not sufficiently robust to fulfil its obligations under the e-Privacy Directive 2002/58/EC and the Data Protection Directive 95/46/EC. The Commission identified three areas of potential infringement:

(1) The UK has failed to establish an independent national authority to supervise the interception of internet communications.

(2) Current UK law authorises the interception of communications, not only where the persons involved have given their consent, but also where the person intercepting has “reasonable grounds” for believing that consent has been given.

(3) Current UK law only provides sanctions where unlawful interception is “intentional”.

If the Court finds in favour of the Commission, the UK will be obliged to implement the measures necessary to comply with the judgment. If the UK subsequently fails to take the steps required, a financial sanction will be imposed by the Court.


For further reading:

Europa

BBC

The Guardian


By Katey Dixon

ISPs take on the Digital Economy Act

BT and TalkTalk bosses call for judicial review of Digital Economy Act in High Court.

BT and TalkTalk, two of the leading UK Internet Service Providers (ISPs) stated that they will be “seeking clarity" from the High Court on the legality of the Digital Economy Bill’s provisions before spending tens of millions on implementing the system.

The current code of practice set out in the Digital Economy Act only applies to the larger ISPs, i.e. those with more than 400,000 subscribers, putting larger ISP’s at a disadvantage according to Andrew Heaney, the Executive Director at TalkTalk. Mr. Heaney stated

“It means we could have huge swathes of customers moving to smaller ISPs to avoid detection”.

TalkTalk chairman Charles Dunstone says

"The Digital Economy Act's measures will cost the UK hundreds of millions and many people believe they are unfair, unwarranted and won't work," "It’s no surprise that in Nick Clegg’s call for laws to repeal, this Act is top of the public’s ‘wish list’."

Digital Economy Act vs EU Law


BT and TalkTalk’s main argument lies with the European e-commerce directive, which states that ISPs are “mere conduits” of content and shouldn’t be held responsible for the traffic on their networks. The two companies will seek clarification if this European law conflicts with the newly introduced Act. In a statement to the BBC, the Coalition Government said

"We believe measures are consistent with EU legislation and that there are enough safeguards in place to protect the rights of consumers and ISPs and will continue to work on implementing them."

Privacy Rights Infringed?


Mr. Heaney (TalkTalk) also expressed concerns over users privacy rights claiming that the act may also be in contravention of the privacy and electronic communications directive. Charles Dunstone, TalkTalk Chariman, told the Times

'The Digital Economy Act's measures will cost the UK hundreds of millions, and many believe they are unfair, unwarranted and won't work'

he said.

"That’s why we need a judicial review by the High Court as quickly as possible before lots of money is spent on implementation."

ISPs vs the Creative Industries


The Digital Economy Bill has already been subjected to much criticism after being “rushed through” parliament earlier on in the year. Among its most controversial measures were proposals to disconnect persistent illegal file-sharers from the web and give copyright holders the power to block access to websites hosting illegal content. The BPI, which represents the UK's recorded music industry, has campaigned hard for the Digital Economy Act to act against file sharers. The Coalition Government have stated

"The Digital Economy Act sets out to protect our creative economy from the continued threat of online copyright infringement, which industry estimates costs the creative industries, including creators, £400m per year,".

Mr Heaney says

"It is outrageous that they are coming begging at our door but are not helping themselves,".

Ofcom have said that plans to disconnect users would not be implemented until 2011 at the earliest.

More Reading:

BBC News
The Times
The Guardian


Watch this space for updates.