Thread: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
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Old 08-05-2008, 16:06   #6077
AlexanderHanff
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Re: Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]
Quote:
Originally Posted by oblonsky View Post
It can't, but there are two issues embroiled in my original post.

For RIPA there is an "implied" consent argument, as raised by Simon Watkins of the Home Office in his email (par 15):
http://cryptome.org/ho-phorm.htm

However Fipr argue that this consent can not be assumed, and provide several layers to their argument, starting with the premise that consent to read (through publication) does not imply consent to intercept - a legally questionable view that I have heard counterargument from several lawyers, hence my post, and ending with less contestable arguments that consent cannot be assumed when:
- reading private email
- a page is not linked from any other page, therefore remains unpublished
- where access controls are in place on the website

Now as far as robots.txt I agree this has no bearing on RIPA but it does on copyright control. Any person publishing a web page and is happy to have their page read and classified by an automated process e.g. Google is unlikely to win damages from Phorm. My view, and I qualify that by saying only for "published" content, i.e. non of the Fipr specific cases apply (password protected etc).

No need to shoot me for having an unpopular view on this. I think the best way to fight Phorm is on the fact that they cannot distinguish with certainty between private content (e.g. password protected) and published content, nor can they accurately and reliably ignore all web email services.
Again this is simply not true, there is existing case law for exactly this situation (which I have cited earlier in this thread). In fact the copyright point is so strong it is one Nicholas Bohm will be referring to himself at the ISPA Legal Forum in London next month.

And again Simon Watkins' comments are not and have been explicitly stated that they should not be read as a legal opinion by the Home Office (and he never posted to crypto either, it was pasted there by a crytpo member). Even the Home Office statement (which frankly isn't worth the paper it is written on anyway which they admit themselves in the very same statement) makes it very clear that even in their opinion implied consent -might- be applicable (again not an official legal analysis as stated directly in the statement) in the absence of any explicit terms. Phorm have stated they will not be paying any attention to explicit terms and will simply assume the right to garnish other people's original works if Google is present in the robots.txt file.

There is absolutely no doubt in my mind or any of the very influential people I have discussed it with including the Earl of Northesk, Nicholas Bohm and many others, that implied consent cannot every be assumed with regards to Privacy and -must- be explicit (informed) consent. the fact that Privacy is a Human Rights in both EU and UK Law makes it inalienable, let me just define that word for anyone who might not know what it means:

Quote:
not alienable; not transferable to another or capable of being repudiated: inalienable rights.
No-one can assume within the EU or the UK that you have waived an inalienable right (by definition) they must be given up explicitly not impliedly and any judgement in a court of law on such matters -must- be compatible with the ECHR. The implied consent fairytale is nothing but hogwash.

Alexander Hanff
(No I never managed to get to bed yet)

---------- Post added at 15:06 ---------- Previous post was at 15:00 ----------

Quote:
Originally Posted by haydnwalker View Post
After reading Mick's News Post... I have a question... Do we as consumers have the right to cancel our contract due to the T&C Changes (as we haven't been informed of them) and also the website doesn't give the date of the T&Cs change...
Yes you definitely have the right to cancel without penalty, this is a material change in the contract and is covered under UK contract Law (specifically Unfair Terms in Consumer Contracts Regulations).

The new terms don't even appear to be legal, DPA requires (again) explicit informed consent before any personal data can be exported from the UK. So burying it in Terms and Conditions doesn't satisfy the requirements of DPA.

Alexander Hanff
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