The commission orginally launched legal action against the UK in April 2009, after a number of complaints were made by UK internet users about being targeted with advertising based on a trail of their internet activity.
Most of the complaints received by the Information Commissioner's Office (ICO), the UK's data watchdog, concerned online ad technology Phorm and its trials of its ISP-level behavioural targeting with BT. Complainants were angry they were not informed of their participation in the trials.
After reviewing the complaints the commission argued that in UK law there is no independent national authority to supervise interception of some electronic communications, such as email.
While the use of personal data in behavioural targeting is a matter for the ICO, the Home Office.takes responsibility for unlawful interception. This is because the existing offence of unlawful interception is under RIPA (Regulation of Investigatory Powers Act) which is a Home Office act.
The Home Office said: "We can confirm that we are in discussions with the Commission about this directive and are disappointed the Commission has decided to refer the case to the European Court of Justice.
"We are planning to make changes to address the Commission's concerns and will be setting out more detail on any necessary amendments or legislation in due course."
Currently, these communications are not only intercepted if consent has been given, but also when the person intercepting the communications has ‘reasonable grounds for believing’ that consent has been given.
These provisions do not comply with EU rules, which define consent as ‘freely given, specific and informed indication of a person’s wishes.’
The EU rules are outlined in the e-Privacy Directive and Data Protection Directive.
UK law prohibiting and providing sanctions in case of unlawful interception are limited to ‘intentional’ interception only, whereas EU law requires member states to prohibit and to ensure sanctions against any unlawful interception regardless of whether committed intentionally or not, according to the Commission.