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Phorm and the Computer Misuse Act...
Nicholas Bohm ukcrypto at chiark.greenend.org.uk
Mon, 28 Apr 2008 15:39:13 +0100
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David Biggins wrote:
> Ah,... yes. Provided of course that the system was opt-in.
FIPR and the ICO agree that only an opt-in can provide the requisite
consent under the Privacy and Electronic Communications (EC Directive)
Regulations 2003, and I don't think the Home Office has suggested
otherwise. (See
http://www.opsi.gov.uk/si/si2003/20032426.htm for PECR.)
I doubt if Phorm is happy about this, although no doubt putting a brave
face on it; but I doubt if the ISPs will feel they can ignore it. They
may not yet have taken on board the clear distinction drawn in PECR
between a subscriber and a user, and may be thinking they can make do
with a deemed consent derived from a change to contract terms.
But a deemed consent of this kind isn't the real consent required under
PECR; nor can a subscriber's consent amount to consent by another user
unless the subscriber has first got that other user's consent. So there
are challenges ahead for ISPs even if an opt-in business model works.
> If on the other hand it was opt-out, which seems to be Phorm's
> preference, would that affect the issue of apparent consent? So far,
> only Carphone Warehouse seem to have made any explicit commitment to
> making it opt-in.
Failing to opt-out isn't giving consent; but what a prosecutor or a jury
would make of it under the CMA isn't easy to be sure about.
Nicholas
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>> -----Original Message-----
>> From:
ukcrypto-admin@chiark.greenend.org.uk
>> [mailto:ukcrypto-admin@chiark.greenend.org.uk] On Behalf Of
>> Nicholas Bohm
>> Sent: 24 April 2008 12:44
>> To:
ukcrypto@chiark.greenend.org.uk
>> Subject: Re: Phorm and the Computer Misuse Act...
>>
>> The main obstacle to a CMA prosecution would be apparent user
>> consent, depending on the adequacy of the information given
>> to the user as the basis for the consent.
>>
>> Nicholas