Quote:
Originally Posted by jelv
Thinking forward - if BT implement Phorm, could BT do the following and still stay within the law:
Stage 1
Change the T&Cs for new users joining the service. These would include their version of what the Phorm/Webwise system does and could say that by agreeing to these T&Cs you are agreeing to be opted in to Webwise by default. BT/Phorm would then be able to say people had made inphormed consent.
We all know that many people just click agree without reading the conditions.
Stage 2
Require people changing or adding products to their service to agree to the T&Cs as above. For example, they will at some stage be moving people across to the higher ADSL2+ speeds offered under 21CN, this would be a great opportunity for them to effectively impose acceptance of changed conditions - accept Phorm or you can't have the higher speeds.
Going further, would it be legal for BT to at some stage to repeat the above, only making Phorm/Webwise mandatory with no opt out?
If the above is possible, surely that is a very strong argument against those idiots who are at present saying they are not too bothered because they will be able to opt out. Widespread penetration of Phorm in to the ISP market would put Kent in to an incredibly powerful position of being able to control the information fed to the masses.
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I would say that they may do it but...
The ISP could fall foul of The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) - Regulation 5(5) 1. (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract - if T&C's are changed without proper written notification.
It is also possible that if Phorm's interception of the ISP users web surfing is proved to be illegal then consent obtained expressly by acceptance of terms and conditions will render that contract void and the contract terms are not enforceable. A contract which cannot be performed without doing something illegal is void.
The HO suggested in their notes at paragraph 20 that the service should be provided with the explicit consent of ISP's users
or by the acceptance of the ISP's terms and conditions, and paragraph 21 which states that the ISP's users' consent can be obtained expressly by acceptance of suitable terms and conditions. I think that any T&C changes should be challenged.