EU escalates legal action against UK over behavioural advertising

Claire Walker

The European Commission has today escalated its action against the UK over the alleged conflict between the UK’s interception of communications regime and the Data Protection Directive. The announcement is made in this Commission press release. To find out more, and to learn why this story has a curious connection with former high-profile police chief Alison Halford, pictured, please read on…

The Commission’s action was triggered by concerns over the online behavioural advertising techniques used by Phorm, reported by Datonomy earlier in the year (see “Bad Phorm” 15 April). It sent the UK government a formal notice in April.

This second stage is a (not very scary sounding) “reasoned opinion”, which sets out the three alleged deficiencies in the UK’s regime, which is set out in the Regulation of Investigatory Powers Act 2000. The alleged conflicts between UK law and the EU data protection law are as follows:
  • There is no independent national authority to supervise interception of communications, although the establishment of such authority is required under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications.”
  • “the Regulation of Investigatory Powers Act 2000 – authorises interception of communications not only where the persons concerned have consented to interception but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent to do so has been given. These UK law provisions do not comply with EU rules defining consent as freely given specific and informed indication of a person’s wishes.”
  • The RIPA provisions prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas the EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not.”

If the UK does not respond to the Commission’s concerns within the next two months, the next stop will be the European Court of Justice. But, Datonomy wonders, can we really expect reforms to RIPA to jump to the top of the UK political agenda? The modernisation (i.e. extension) of the UK’s communications data retention regime has, it is true, been on the Labour government’s agenda recently, so it will be interesting to see how it responds to these demands for other changes to its interception legislation. Which brings me (and thanks for sticking with me thus far) to the curious co-incidence…

Datonomy readers with long memories will remember that RIPA was introduced not, primarily, in order to comply with EU data protection legislation, but to make the UK’s communications interception regime compatible with the European Convention of Human Rights, in the wake of the successful ECJ case brought by senior police officer Alison Halford against the Home Secretary in the 1990s over the tapping of her phone conversations. Datonomy was intrigued to see from Alison Halford’s Wikipedia entry that she now advises the Conservatives on home affairs. So, who knows, under a new Conservative government, and with RIPA under fire from the European Commission, the whole legislation could go full circle…

Leave a Reply

Your email address will not be published. Required fields are marked *