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Posted in International/EU Privacy

European Commission Gets Tough Against UK and its Privacy Enforcement

The European Commission has filed a complaint against the United Kingdom in the European Court of Justice (ECJ) alleging a failure by the UK government to implement EU directives on privacy and data protection. The case arises out of the incident involving BT Group’s testing of targeted advertising using technology from Phorm without the express consent of consumers. The European Commission started its investigation earlier this year, and was not persuaded by the responses it received from the UK authorities:

The Commission considers that existing UK law governing the confidentiality of electronic communications is in breach of the UK’s obligations 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 under the ePrivacy and Data Protection Directives, in particular to hear complaints regarding interception of communications


Current UK law 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 provisions do not comply with EU rules 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 are limited to ‘intentional’ interception only, whereas EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not," 


In April, then-EU Telecoms Commissioner Viviane Reding drew a line in the sand:  "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." (Ms. Reding currently is European Commissioner for Justice, Fundamental Rights and Citizenship and presumably was influential in the decision of the Commission to sue the UK.)  The UK government is facing fines in the case just brought by the Commission.