EU Commission Refers UK to CJEU over Alleged Privacy Law Failings
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The European Commission has referred the UK to the Court of Justice for the European Union (“CJEU”) for not fully implementing EU rules on the confidentiality of electronic communications such as e-mail or internet browsing.
The Commission considers that existing UK law governing the confidentiality of electronic communications is in breach of the UK’s obligations both under the ePrivacy Directive 2002/58/EC and the Data Protection Directive 95/46/EC in three specific areas:
· there is no independent national authority to supervise the interception of some communications, although the establishment of such authority is required by the ePrivacy and Data Protection Directives, in particular, to hear complaints about the interception of communications;
· current UK law authorises interception of communications not only where people have consented to the interception, but also when the person intercepting the communication “has reasonable grounds for believing that consent to do so has been given”. These UK provisions do not comply with EU rules defining consent as “freely given, specific and informed indication of a person’s wishes”; and
· current UK law prohibiting and providing sanctions in cases of unlawful interception are limited to intentional interception only, whereas EU law requires member states to prohibit and to ensure that there are sanctions against any unlawful interception, regardless of whether or not it was committed intentionally.
The case centres on the UK Government’s failure to act against BT over its use of Phorm, a scanning software that tracks users’ web use in order to serve them ads that are related to the recorded internet activity. BT used this technology without telling users, which led to complaints to UK regulators and the Commission that this breached privacy laws.
No doubt the outcome will be of interest to Irish Data Controllers and the Irish Data Protection Commissioner –
if the CJEU finds against the UK, this could provide the Commission with the impetus it needs to impose stricter rules on all member states, in particular its stated objective of strengthening and harmonising consent rules.
We will keep the Blog updated on developments.
