Broadband News

The British government has confirmed to the European Commission that the controversial ad-serving business, Phorm, is legal. In a move that will come as little surprise considering the service was given the go-ahead by the Information Commissioner this Spring, the government outlined that, so long as it remained an opt-in service, it would be legal.

The EU had written to the government giving a deadline of the end of August to clarify its position on Phorm and whether or not gathering web surfing habits, at ISP level, was not an invasion of privacy outlawed by EU law.

The government got an extension to mid September to answer that, just as the Information Commissioner has already outlined, so long as it remained an opt-in service, it would be legal under UK law.

Although the Department of Business Enterprise and Regulatory Reform (BERR) would not publish the letter it sent to the European Commission it did release a series of bullet points which outlined the criteria under which Phorm is considered legal:

• the user profiling occurs with the knowledge and agreement of the customer;


• the profile is based on a unique ID allocated at random which means that there is  no need to know the identity of the individual users;


• Phorm does not keep a record of the actual sites visited;


• search terms used by the user and the advertising categories exclude certain  sensitive terms and have been widely drawn so as not to reveal the  identity of the user;


• Phorm does not have nor want information which would enable it to link a user ID  and profile to a living individual;


• users will be presented with an unavoidable statement about the product and asked to exercise a choice about whether to be involved;


• users will be able to easily access information on how to change their mind at  any point and are free to opt in or out of the scheme

Unsurprisingly Phorm has responded positively to the government decision. Whilst pointing out it always maintained it broke no laws and agreed its introduction should be subject to stringent tests, the company promised to carry on working with outside bodies to ensure it is introduced transparently.

“We will continue to engage with stakeholders from regulators to consumers and are excited about demonstrating how our system will benefit all of them by introducing a new way to help fund the future of the internet and its richness and diversity,” a statement read.

In fresh developments today, the City of London Police have confirmed that they will not be pursuing the case further.  DS Barry Murray stated in an email that "The matter will not be investigated by the City of London Police as it has been decided that no Criminal Offence has been committed."

In the meantime the EU’s Information Commissioner, Viviane Reding, who had sought clarification from the UK government in July over Phorm’s legality, responded to the BERR letter by revealing it will be working on a “legal assessment” of the situation. So, there is a possibility she will raise counter points enshrined in EU law which could mean the discussion is not over yet.

There has still been no indication of when the service might launch with BT other than the perennial “in a few weeks”.