Privacy expert seeks judicial review to overturn BT-Phorm decision

Alex Hanff of Privacy International has begun legal steps to instigate a judicial review into the Crown Prosecution Service's (CPS) decision not to prosecute BT for covert use of Phorm's Webwise software.

The secret trials of the behavioural monitoring software run by BT in 2006 and 2007, breached the Regulation of Investigatory Powers Act (RIPA) 2000, said Hanff, and other privacy experts including Dr Richard Clayton.

Hanff, who led a public campaign against the use of the controversial software that captured people's web browsing habits first made a complaint to the City of London police.

He then launched a private prosecution against BT in 2008, which the CPS has now thrown out. The CPS said it had reviewed the BT-Phorm case but decided there is currently insufficient evidence to begin a prosecution under section 1 of Ripa and to pursue it "would not be in the public interest".

This means BT will not now be prosecuted for using Webwise and not informing its customers.

BT said it was pleased the case had been dropped but, but Hanff told Computeractive today that he would continue to pursue the issue.

He has talked to his barrister about pushing for a judicial review. He wants to see if the CPS' decision can be overturned and his case reinstated.

"By throwing this out, the CPS makes a mockery of the justice system and places businesses above the law," he said.

Phorm's Webwise software was controversial from the start. A number of major internet service providers, including BT, Virgin Media and Talktalk had planned to use it.

Privacy campaigners fought against this and got various organisations including the Information Commissioner's Office involved and made a complaint to the European Commission.

Their concerns were that the software, which constantly analysed customers' web surfing habits in order to deliver better targeted advertising, would be a danger to web users' privacy and breached Ripa.

Ripa is the law governing the powers of public bodies to carry out surveillance and investigation.

It also covers the unlawful interception of communications, which privacy experts claimed Webwise did when it recorded people's web browsing habits.

Hanff said he would now be filing a Freedom of Information request to the CPS to obtain the expert evidence they sought.