EU takes action against Britain over secret ISP advertising tests

The European Commission has launched proceedings against Great Britain following secret advertising tests by ISPs. The country must tighten up its privacy legislation, otherwise it will be dragged before the European Court.

The procedure follows complaints from internet users about secret tests in 2006 and 2007 by provider BT and advertising company Phorm. To this end, they had drawn up tens of thousands of surfing profiles of BT customers, with the aim of serving targeted advertising. While UK law prohibits the interception of communications, it does not where there are ‘reasonable grounds’ to believe that it was authorised. The British police previously refused to take action against the companies because the customers allegedly gave implicit consent for profiling.

According to the European Commission shows the case that Britain has not properly implemented the EU privacy directive: it requires confidentiality of communications unless customers explicitly allow others to snoop into their data. Member States must also have an independent authority to monitor compliance. In the UK, the Information Commissioner’s Office took no action on complaints from BT customers after Phorm argued that it had been difficult to explain the creation of advertising user profiles to every customer, writes The Registry. For that reason, the committee doubts the effectiveness of the ICO, and the United Kingdom can also rebuke it for this.

The British government, meanwhile, still seems to believe that ISP customers implicitly agree to profiling their surfing behaviour, and has allowed Phorm to roll out their service around the turn of the year provided customers have an easy opt-out way. It is unclear whether the government intends to change the law and thus the conditions for Phorm – and demand an opt-in – or whether it wants to risk a case before the European Court of Justice in Luxembourg. The European Commission expects a formal reply from London within two months.