I've been thinking about the contractual angle:
1. the Virgin terms and conditions don't cover the planned disclosure of information to Phorm
2. Virgin would have to change those terms and conditions to allow for Phorm
3. at that point, even people who are locked into 12 month contracts could leave without penalty, and go to, say Tiscali (£20 for up to 8MB, phone rental and unlimited national and international calls - and Freeview is free)
4. Refusing to provide an internet service that is free from surveillance might be an unfair contract term in accordance with the Unfair Contract Terms Act (UCTA). Particularly if no other ISP is available, or if the only other available ISPs also conduct surveillance. Furthermore, my credit card conditions of service forbid me to disclose my password to anyone. Virgin will have access to my password, whatever they say they are going to do with it. (I think I will write to my credit card and ask them for their views about these risks. I am also thinking of asking an insurance company to quote me for the cost of cover against the risk that someone at Virgin or Phorm uses my credit card details. The answers to the questions would be relevant to the court's consideration of the UCTA issues. Come to that, I should ask my bank if it is still safe to do internet banking.)
I am continuing to mull this over!
(The contract interpretation argument:
See clause G, "Your details and how we look after them". A lot of people think this allows Virgin to sell data to Phorm: I don't think so. You need to bear in mind the principles of contract interpretation used by the courts. Some of the main ones:
1. the contra preferentum rule. This means that the court will construe an ambiguous contract term against the party that wants to rely on it.
2. Words are to be given their normal and natural meaning
3. Any given contract clause is to be construed in the context of the contract as a whole.
If you look at clause G:
"We [not Phorm's customers, third party advertisers who have nothing to do with Virgin] may also, *subject to your consent*, use your personal information [there isn't a contractual definition of "personal information". The definition is not necessarily limited to the DPA meaning. The court will give the words their ordinary and natural meaning. Information about me, what I read, but etc., is "personal" within the normal meaning of the word.] to contact you with information about special offers and rewards. We and other Virgin companies (e.g. Virgin Atlantic) may also, *subject to your consent*, use your personal information to contact you with information about their products [i.e. the products of other Virgin companies, not those of Phorm's customers] and services including special offers from them, and we may disclose your personal information to other Virgin companies and sub-contractors and agents *for these purposes* [i.e. for the purposes of giving us information about the products and services of other Virgin comanies]. But don't worry, [condescending!] we won't share your details with companies outside the Virgin group for marketing purposes *without your consent*.[So disclosure to the subcontractors and agents must be with our consent. NB: Phorm is not a subcontractor or agent of Virgin - Phorm is a Virgin customer - it buys marketing data from Virgin. As the planned disclosure of our information is not to enable the provision of information about Virgin products and services, then disclosure to Phorm, with or without consent, it is not covered by this clause. Which brings us to consent: the repeated use of the word "consent" can only mean separate, express consent independent of the passive agreement to these terms and conditions. If consent meant - by signing these terms and conditions, you have consented - then why would this clause keep referring to consent? Consent clearly means something else - separate consent.]
If you have given us the consent referred to in paragraph G3 above, then from time to time, we *and other Virgin companies* [NB: not Phorm's customers] may contact you by mail, telephone, email, other electronic messaging services (such as text, voice, sound or image messages including using automated calling systems) or fax with information about Virgin products and services (including discounts and special offers). [NB: but not via advertisements from Phorm's customers on their (or perhaps their customers') websites.])
---------- Post added at 23:27 ---------- Previous post was at 23:23 ----------
Quote:
Originally Posted by popper
he has a good point....
http://business.timesonline.co.uk/to...cle3688387.ece?
"
As Intercepting communications is illegal the bigger question is why is the ICS allowing BT to do yet another trial.
By letting BT test the system, the ICO are aiding and abeting a criminal act.
colin stone, manchester" |
I wonder if they really understand the interception angle: have they been distracted by the complexities of the personal data processing (although admittedly they go that equally wrong).