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UK In EU Court Over Targeted Internet Advertising

by Ulrika Lomas, for, Brussels

05 October 2010

The European Commission (EC) has decided to refer the United Kingdom to the Court of Justice of the European Union (EU) for not fully implementing its rules on the confidentiality of electronic communications, such as e-mail or internet browsing.

An infringement procedure was opened in April 2009, following complaints from UK internet users, notably with regard to targeted advertising based on analysis of users’ internet traffic. The EC previously requested the UK authorities in October 2009 to amend their rules to comply with EU law.

The EU ePrivacy Directive on privacy and electronic communications requires EU member states to ensure confidentiality of the communications and related traffic data by prohibiting unlawful interception and surveillance unless the users concerned have consented to this.

The EC considers that existing UK law governing the confidentiality of electronic communications is therefore in breach of the UK's obligations in that, for example, current UK law authorizes 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 provisions also do not comply with the EU Data Protection Directive defining consent as "freely given, specific and informed indication of a person’s wishes".

Current UK law prohibiting and providing sanctions in case of unlawful interception is also limited to “intentional” interception only, whereas EU law requires member states to prohibit, and to ensure sanctions against, any unlawful interception regardless of whether committed intentionally or not.

Moreover, the Data Protection Directive requires member states to establish appropriate sanctions in cases of infringements and that independent authorities must be charged with supervising implementation. In the UK, there is no independent national authority to supervise the interception of communications.

TAGS: court | business | European Commission | commerce | law | United Kingdom | internet | e-commerce | regulation | European Union (EU) | Europe

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