PL&B UK E-news, Issue 97

1. EU pressing UK to step into line regarding interception

The EU Commission has moved into the second phase of the infringement proceeding against the UK Government for failing to prohibit unlawful interception of electronic communications. The Commission issued, on 29 October, a reasoned opinion. The UK now has two months to reply. If the Commission receives no reply, or if the response presented by the UK is not satisfactory, the Commission may refer the case to the European Court of Justice.

The Commission has stated that the UK is not fully compliant with the ePrivacy Directive and its rules on protecting the confidentiality of electronic communications. The argument goes back to complaints about Phorm, and its use of behavioural advertising without individuals’ consent.

The Commission points out three problem areas:

1. 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.

2. The current UK law – the Regulation of Investigatory Powers Act 2000 (RIPA) – 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.

3. 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.

“Ensuring digital privacy is a key for building trust in the internet. I therefore call on the UK authorities to change their national laws to ensure that British citizens fully benefit from the safeguards set out in EU law concerning confidentiality of electronic communications,” said EU Telecoms Commissioner Viviane Reding.

2. Police retain right to hold data on minor criminal convictions

The court of appeal has ruled that police may retain information about old convictions, however minor, as they can be of value in fighting crime. The appeal case was brought by five police forces (Humberside, Staffordshire, Northumbria, West Midlands and Greater Manchester). The court decision could seriously infringe privacy rights, as it is debatable whether it is in line with the data protection principles of not collecting excessive data, and not retaining personal data for longer than necessary. In addition, the individuals (convicted) who had contested the decision were not given permission to appeal to the Supreme Court.

3. Parliamentary group calls for opt-in for behavioural advertising

The All Party Parliamentary Communications Group says that the current self-regulation on behavioural advertising, e.g. the Good Practice Principles promoted by the Internet Advertising Bureau, is inadequate. The group calls for opt-in for the use of behavioural advertising techniques. The MPs are of the view that ISPs have to do more to protect individuals against privacy threats on the Internet.

The MPs also say that the Government should review the existing legislation : ‘We recommend that the Government bring forward a Green Paper on Privacy, with a view to bringing forward a Privacy Bill in the next Parliament that sets out simply expressed, but far-reaching, protection for everyone’s privacy, in both the offline and online worlds.’

Other recommendations, from a report “Can we keep our hands off the net?”, were issued 15 October.

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Copyright Privacy Laws & Business 2009