UK referred to ECJ over internet privacy

12 January 2011. Published by Keith Mathieson, Partner

On 30 September 2010 the European Commission announced that it referred the UK to the European Court of Justice for its alleged failure to implement EU laws on the confidentiality of electronic communications such as emails or internet browsing.

The referral follows legal action against the UK by the European Commission commenced in April 2009.  That case was prompted by complaints from UK internet users about the UK authorities' treatment of their concerns over the use of Phorm technology by Internet Service Providers (targeted advertising based on prior analysis of users' internet traffic).

In October 2009 the European Commission requested that the UK authorities amend UK law to ensure it complied with the EU law.

The referral of the UK to the European Court of Justice a year later reflects the Commission's view that the UK is still breaching its obligations under the Directive 2002/58/EC on Privacy and Electronic Communications (the E-Privacy Directive) and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the Data Protection Directive) which were implemented in the UK through the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act 1998 respectively, in three main areas:

1) There is no independent national authority to supervise the interception of some electronic communications, which is a requirement under the E-Privacy Directive and Data Protection Directive;

2) Existing UK law allowed the interception of communications not only where the relevant internet users have consented to this but also where the person intercepting the communications has "reasonable grounds for believing" the consent to intercept has freely been given under the UK's Regulation of Investigatory Powers Act 2000 (RIPA). This is contrary to the EU laws which define consent as being "freely given, specific and informed indication of a person's wishes";

3) Current UK laws prohibiting and providing sanctions in the case of unlawful interception are limited to intentional interception only, whereas EU law is wider, requiring member states to impose penalties for any unlawful interception irrespective of whether it was committed intentionally or not.

The European Commission will now take the UK to Court to try and force it to change its laws.

See further sections 4.3.4 and 4.4 of the Privacy Law Handbook.

European Commission's announcement