On 30 September 2010, The European Commission announced that it had referred the UK to the European Court of Justice for failing to fully implement the rules on confidentiality of electronic communications contained in the E-Privacy Directive.
Proceedings were brought after complaints were made due to the use of targeted advertising based on prior analysis of users’ internet traffic by internet service providers.
The three areas where the UK is in breach are:
• There is no independent national authority responsible for supervising the interception of communications and addressing any complaints relating to interception.
• UK law permits interception where the person intercepting has “reasonable grounds for believing” that consent to do so has been given. However, the Commission did not consider that this satisfied the EU law requirement that consent must be “freely given, specific and informed indication of a person’s wishes.”
• UK law only prohibits and provides sanctions for unlawful interception where the interception was “intentional”. The Commission considers that this is not wide enough and that sanctions should apply against any unlawful interception, even when unintentional.
As a result the Home Office proposes to expand the functions of the Interception of Communications Commissioner to deal with unintentional interceptions by private entities and to introduce a new monetary penalty for such interceptions.