Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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Under section 11(1) of the Unfair Contract Terms Act 1977, in order to satisfy the ‘requirement of reasonableness’, the term must have been a fair and reasonable one to have included in the contract having regard to all the circumstances which were or ought reasonably have been known to, or in the contemplation of the parties when the contract was made. In other words, the ‘time-frame’ against which the assessment is made is that of the making of the contract and the actual breach is not relevant to the reasonableness of an exemption clause, merely potential breaches within the reasonable contemplation of the parties when they contracted. The burden of proof lies on the person seeking to rely upon the clause to show that it is reasonable (s11(5)). There are guidelines on reasonableness in schedule 2. They are only relevant by 'legislative prescription' when the requirement of reasonableness is applied by sections 6 or 7, but they are a list of factors which the courts have recognised to be generally factually relevant to the requirement of reasonableness, under whichever section it is applied (eg Phillips Products Ltd v Hyland [1987] 2 All ER 620, p 628). There is also further specific guidance as to the treatment of clauses which limit liability in section 11(4). In relation to such clauses, regard is to be had to the resources available to the person seeking to rely on the clause to meet potential liability and how far it was open to that party to obtain insurance cover. In general, the courts have indicated the relevance of considering the insurance situation eg whether the exemption clause placed the risk of some problem with performance on the person best able to insure and whether the allocation of the need to insure was reflected in the contract price.(2) The application of the ‘requirement of reasonableness’ is basically a weighing process, with the various factors indicating the reasonableness, or otherwise, of the clause, being put in the scales with an appropriate weighting. (On the requirement of reasonableness generally see Macdonald, 1999a) |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
:welcome: Mesmer, your not that No.27 are you ;)
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regarding the provisional comercial contract, YES thats exactly what i thought. there MUST be something in that signed contract that will cost them dearly, otherwise you would expect them to run the numbers and come to the conclusion its not werth the loss at this time. apparently it would seem, given the VM hush,they are infact in deep on the cash and related front if they back out now. perhaps if and when Virgin Media run a Phorm trial, that gives them some breathing room! OC as i pointed out above somewere, Neil couldnt really be held to a comercial contract or its cash liabilitys that deemed they act unlawfully could they. perhaps he's waiting to see something with a legal stamp, VM do keep quoting the vague nothing will be put in place for a long time ,it seems they are just waiting for one of the others to break or give them a way out perhaps. ---------- Post added at 19:18 ---------- Previous post was at 18:43 ---------- Quote:
you will have to wait the alotted time frame (40 days was it, although i think it may be less , someone needs to check that official timeframe perhaps)though before you can action a non compliance. and sending a DPA request for 'any and all' :angel: data held by return post, and in human readable form (thats a LOT of data,paper and time for a £10) before the time lines up, means they might not have actioned the notice before the DPA request arrived. sure, we all know they should have, but they can use that defense if they like , they have no such option if you wait the full time allowed per letter though. |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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You are correct that I was paraphrasing CW. I believe they did state that data would not touch any Phorm supplied equipment unless you were foolhardy enough to opt in. I was trying to be charitable to Virgin in suggesting that they might have contractual obligations as a consequence of their ill-advised dealings. On the other hand, CW's statement and BT's trial statement suggests that they could offer a default opt out completely bypassing Phorm's data interception equipment without breaching whatever contract they have if one assumes that the three contracts were similar. This may or may not be the case. The less charitable interpretation is that they are determined to impose this because they have scant regard for their customers’ privacy and wish to maximise financial gains arising from their new targeted advertising venture. My understanding is that contracts for illegal or immoral purposes are void. It seems reasonable to assume that Virgin could escape from their contractual obligations without penalty if it can be shown that the data interception is illegal. The big question is whether or not Virgin care about their customers. In my view, the object lesson for all companies is that they should devote fewer resources to marketing and redeploy that effort to provide the people that pay them and keep them in business with a product or service that is second to none. |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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(Although I'm fairly sure that it would be appealled pretty fast -- the minor publicity storm has attracted some powerful supporters.) And even if we 'win' the right to keep Phorm away from our clickstreams, I wouldn't be at all surprised if this is only the first, stumbling attempt at (ab)using our browsing/connection data. I suspect that it's worth too much money for them to leave it alone. |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
thanks to admin in the DRI blog, iv had this response
"popper - The Open Rights Group seem to be on top of the Phorm issue. Unless we find out that an Irish ISP is deploying the technology, I don’t think DRI has much to add. The provision you’ve cited on that thread is limited to Irish law. RIPA is a much more complex statute. Incidentally, the underlying European law is the privacy in telecommunications directive, 2002/58/EC, which you might like to have a look at if you haven’t already. " time to look at 2002/58/EC now.... ---------- Post added at 22:42 ---------- Previous post was at 22:19 ---------- Quote:
we need more legally trained points of view here, so i posted a few questions and POV in a few places today and pointed them to this thread. so hello and :welcome: if your reading as one of the 14 guests, come join us,take the poll, and help us understand the finer points of Uk and EU law as it relates to this ISP/Phorm/users deal. well flowrebmit, theres the EU DC 'ip is your personal data' OC, so if you instruct them to not send your data to any profiling electronic device such as any Phorm supplyed or gifted kit perhaps thats enough. as you imply, you cant assume the ICO knows, so make sure the UK ICO knows fully about the notice and what the Phorm Box is and does, how its gifted over a standard 5 year plan as we understand it from public information etc. if its still being directed (a data protection act request on that, might show that fact in a log of your dataflow perhaps?)to the Phorm profiling for profit boxs then thats then a matter for the ICO to look at as part of the non compliance you send it would seem. would the ISP (because we are talking about several ISPs right not just VM) really risk the ICO (temp)removing their DPA licence once they understand thats a very real option open to the Data Commissioners as a sanction....! |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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A hypothetical example, if British Telecom, under the DPA registered that they were going to process and store only the names and addresses of their customers. If a customer makes a call from their BT phone to a Mail order company, as part of the conversation the customer gives the Mail order firm their name, address and credit card, has BT broken the law? I only have limited knowledge on the DPA, and there have been a lot of messages in this thread, so the question is - was the DPA ever meant to cover transmission of Personal Data by a communication company? Quote:
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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So if less than 75k users dump BT Retail because of Phorm, they'll still be making a profit! I don't have equivalent figures for VM but I'm sure somewhere deep in VM Towers, somebody will have done just that calculation... probably several times! It's money for old rope, apart from the PR nosedive. The advertising world really likes the idea of targetted ads by profiling and reckons it's worth countless billions. If we beat them down this time, I suspect they'll be back. |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
So to do this if it nets that kind of money I would expect my BB for free since my sufing and search habits would be paying for my connection.
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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remember though, you will only get perhaps 2/5th of that as they also need to sign a comercial contract with the other webserver party you contact to be sure to not be liable for comercial copywrite piracy there as well. and to top it off, for full legal coverage, they need to channel you both into a so called 'walled garden' subset of the web to be totally sure they are not leaking their interception for profit into the real interweb were they might collect and process websites and clean users un-authorised.... ohh wait..., after paying out all the extra expenses for accepting this free Phorm box, that doesnt sound like they will have much cashflow left out of their share of this cashcow after all. not such a good,legal and profitable business plan after all then..... :rolleyes: or is it ! my property :) |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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The ISP's have to be stopped from ever getting involved with anything like this, ever again. Although this one may be won over a point of law or something like that, I believe only 2 things can kill the idea off :- 1) Governement intervention (ha ha), but they might if they think there are a lot of votes at stake. 2) Mass public protest. Both boil down to essentially the same thing, this issue must go mainstream. 8k votes on the Downing Street website is nothing. Compare to how many internet users there are? A BBC article that is no longer visible? Clear cut informed opinion against, but not exactly mass market publications (The Register). Yes, keep on doing what everybody here is doing. Talk the thing down at every opportunity. Explore using the law etc. But, this campaign must go mainstream if we are to kill off the issue once and for all. Now, how do we best do that? |
Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
Sorry OF1975, the board cuts off quotes within quotes so it's difficult to follow the conversation. Hope this makes it clearer...
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I wonder if the only effective protection will be to specifically extend the privacy of other forms of communication to the online sphere, making *any* interception without explicit consent or lawful warrant a criminal offence? Quote:
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
Ceedee, under RIPA, any interception without consent or warrant already is a criminal offence.
Of course, whether the Phorm system, either in future or even in relation to last years secret trials with BT, breaks RIPA has yet to be tested in court but from what I understand some of those involved in the BT trials last year are already preparing a dossier to be presented to the police. Remember RIPA is totally distinct from the DPA obligations. |
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