Q: We run a transactional website and heard . We're also aware that the EU has just started legal proceedings against the UK for breach of EU law in this area. Are we safe to continue or should we follow their lead and opt-out?
A: You are safe to continue unless you feel from a PR point of view, that users of your site might object. Phorm does not store users' IP addresses and the consumer's internet service provider should have obtained the consent of the user to pass minimal data over to Phorm.
When you obtain for your site, via use of Phorm technology, bespoke advertisements for your website visitors, it is unlikely any breach of the law will have occurred.
However it is wise to take the following measures:
(a) In any contracts or terms of business between an internet service provider and your company, have the ISP warrant that they have obtained all data protection consents necessary to be fully compliant with the Data Protection Act 1998 (DPA) and the Privacy and Electronic Communications (EC) Regulations 2003 and all relevant other legislation.
Back this up with an indemnity clause. Obtain similar legal warranties and indemnities in any contracts with providers of data that you use on your site to ensure advertising is appropriate to an individual user.
(b) Ensure users are told how their data will be used on the site. Have a written set of terms and conditions for use of a site and if it is a site where users log-in, make sure any data protection and related consents are clearly and freely given.
It is a legal requirement also tell users if cookies are used on a site and it is best practice to inform them as to what a cookie is or refer to a site such as www.aboutcookies.org. Look at the guidance from the ICO's office on internet marketing too.
Further reading:
BBC News Q&A on Phorm - http://news.bbc.co.uk/1/hi/technology/7283333.stm
The pro-Phorm web site is at http://www.stopphoulplay.com/
Susan Singleton, LLB, Solicitor, Singletons, www.singlelaw.com.
Susan is author of Tottel's Data Protection Handbook and sits as an independent member on the Direct Marketing Commission
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