Phorm "no worse than Tesco"

 

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By Barry Collins

Posted on 20 May 2009 at 07:56

The practices of controversy-strewn web advertising service Phorm are "not philosophically different" to those of Tesco or Amazon, according to an e-commerce lawyer.

Vanessa Barnett, partner at Berwin Leighton Paisner, was speaking at a Westminster eForum on behavioural targeting. The event heard from speakers including Phorm's senior vice president, Mark Burgess, and the executive director of the Open Rights Group, which is urging leading websites to opt-out of the Phorm scheme.

Barnett compared Phorm's behavioural tracking service - which serves up adverts based on the user's internet traffic - to Tesco's Clubcard scheme and Amazon's shopping recommendations. "What Phorm and Google are doing isn't philosophically different to what Tesco and Amazon are doing," she claimed.

That argument was rejected by the Open Rights Group's executive director, Jim Killock, who compared Phorm's technology to "industrial espionage" because it didn't seek the permission of commercial websites to collect data about their visitors' surfing habits.

"In our view, these services should be opt-in," Killock said. "Data shouldn't be collected without consent. If you're running a website and your data is being collected by a third party, you should want a contractual relationship with that third party.

"Many businesses may go so far as to think that having their data spied upon is a form of industrial espionage."

The Open Rights Group and other privacy advocates have long argued that Phorm's technology is illegal under the Regulation of Investigatory Powers Act (RIPA), because it intercepts data without permission.

Phorm's Mark Burgess vehemently denied those allegations. "It's definitely legal under RIPA," he argued. "We are very, very strong on that users must provide their consent."

However, the lawyer wasn't prepared to vouch for the legality of the system. "Ultimately, only a judge can decide if Phorm's legal," said Barnett, adding that no legal judgement could be reached until the service was launched.

She said that interception is legal, if informed consent is acquired. "The question is if it's 'informed' - I'm not so sure about that yet."