BT dodges prosecution over Phorm scandal

Darren Allan

April 9, 2011

BT won’t be prosecuted over its use of Phorm, the Crown Prosecution Service has decided.

The Phorm affair happened back in 2006, when some 18,000 BT customers had their browsing habits monitored without their knowledge, in a scheme designed to target online advertising more effectively.

When BT and Phorm’s activities were revealed, the police declined to pursue them in the courts, but privacy campaigner Alexander Hanff took the issue to the Crown Prosecution Service, the BBC reports.

However, the CPS has just issued a statement to say that it doesn’t intend to take legal action against either either company.

Andrew Hadik, Reviewing Lawyer for CPS London’s Complex Casework Unit, said: “On the basis of the evidence gathered and with advice from legal and technical experts, we have determined the extent and seriousness of the alleged criminality. At present, the available evidence is insufficient to provide a realistic prospect of conviction.”

He added: “We have concluded a prosecution would not be in the public interest. As such, consent to a prosecution cannot be given.”

The CPS listed some of the specific factors which blocked the move to prosecution. These included the fact that both BT and Phorm received “considerable” legal advice concerning the use of the tracking software which stated that it was unlikely to be contrary to Section 1 of the Regulation of Investigatory Powers Act.

Apparently, following the second trial conducted, BT then received conflicting legal advice, which led to it halt the operation. The CPS states that this action, and the fact that both companies cooperated with the police investigation, suggested neither firm acted in bad faith.

Hmm… If they really had been acting in good faith, they’d have sought the consent of users instead of spying on them, surely? Acting in good faith is all very well after you’ve been caught.

The CPS also noted the trial was limited, the data anonymised, processed “without human intervention”, and later destroyed (we bet it was).

“There is no evidence to suggest that anyone affected by the trial suffered any loss or harm as a result,” it concluded, finishing off with the assertion that a court would likely only impose a nominal penalty given the way the evidence stacked up.

The fact that no one was harmed isn’t really the point. A drunk driver might not run anyone over on his way home, but he’s unlikely to be able to use that in his defence.

So, it seems BT has got away with its foray into commercial espionage. Phorm might also have avoided the courts, but following the episode, was dropped like a hot potato by UK ISPs, including BT.

Phorm racked up big losses in the years following the scandal, and is now trying to find business abroad in Asia and South America.


Comments in chronological order (2 comments)

  1. Shadow says:

    I guess it is more of a case of, whilst what they did is unethical. It is not the same as being illegal and this is the dispute not whether it was right for them to do it.

  2. JD says:

    contrary to Section 1 of the Regulation of Investigatory Powers Act.


    Can we leave the CPS BT blurb out about the conflicting legal advise, the Courts need to make a legal judgement on this, NOT THE CPS!

    The reasons this is needed are quite clear, not just 2006 was it?
    Repeated offenses 2007 then still amid all the controversy 2008!

    Then there is the ongoing fallout due to the absence of a PROPER LEGAL JUDGEMENT!

    Virgin Media with their proposed CView monitoring system. (same problems backdown for now!)

    TalkTalk also currently monitoring (without proper permissions from Websites and Users) their userbase clickstreams for a so called value added service.

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