Commission’s Infringement Proceedings Closed

January 30, 2012

The European Commission has closed an infringement case against the UK in recognition that UK national legislation has now been changed to properly implement EU rules on ePrivacy and data protection on the confidentiality of communications such as email or Internet browsing. The Commission believes UK law and institutions are now well-equipped to enforce the privacy rights of UK users.

The Commission opened this infringement procedure in April 2009, because UK Internet users were concerned about how the UK authorities had handled their complaints over the use of targeted behavioural advertising by several ISPs. This was the Phorm controversy in April 2009. At that time, Commissioner Viviane Reding 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,’ said EU Telecoms Commissioner Viviane Reding. ‘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.’

Since the Commission made its decision in September 2010 to refer the case to the Court of Justice, the Regulation of Investigatory Powers Act 2000 has been amended by removing references to implied consent and established a new sanction against unlawful interception (monetary penalty notices) which previously fell outside the scope of RIPA. See the Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011 (SI 2011 No. 1340).

The new sanction is administered by the Interception of Communications Commissioner (ICC) who will hear complaints about unlawful interception and has published guidance with practical information on how it will exercise these new functions. The Commission states that it expects that the ICC will closely co-operate in its work with the ICO and the law enforcement authorities.