CPS to consider private prosecution over stealth Phorm trials
Opponents call for public interest trial
The Crown Prosecution Service will examine evidence that BT and Phorm's stealth advertising targeting trials broke wiretapping laws, despite a recent police refusal to pass the case to prosecutors.
The office of the Director of Public Prosecutions told campaigner Alex Hanff that a private prosecution under section one of the Regulation of Investigatory Powers Act (RIPA) is possible. The Director must give his consent for such a prosecution.
The evidence against BT and Phorm must pass two tests. First an assessment of whether there is a "realistic prospect of conviction", which attempts to objectively judge whether a jury would be more likely than not to find BT and Phorm guilty of breaching RIPA. Second, the CPS judges whether a prosecution would be in the public interest based on pre-defined criteria*.
Campaigners were angered last month by the City of London Police's view that there was no criminal intent on the pair's behalf and "there would have been a level of implied consent from BT's customers in relation to the tests, as the aim was to enhance their products". The force had been handed a dossier detailing how broadband users were monitored and profiled in secret in 2006 and 2007, including BT's own technical report on the earlier trial.
The same evidence will now be passed to the CPS. It's not known how long a decision will take.
If the Director of Public Prosecutions does grant consent to prosecute, the CPS will take over handling of the case. His Office wrote: "It may also be necessary for them to liaise with the City of London police to determine whether there are any other avenues of investigation which can reasonably be pursued."
Last week the European Commission said it still wants answers from the UK government on why no action has been taken over the trials. The Foundation for Information Policy Research has argued that the EU's Privacy and Electronic Communications Regulations were breached, and Commissioner Viviane Reding has said that specific consumer authorisation would be required for ISP adware to be legal.
In other Phorm news today, the firm announced to the stock market it had cancelled 30,000 stock options issued to an employee who has now left. A spokesman refused to reveal any details of the departure. ®
*The criteria the CPS uses to assess whether a prosecution is in the public interest are set out in paragraphs 5.9 and 5.10 of the Code for Crown Prosecutors, here (pdf).
From my research of the relevant laws, the penalties should this go to trial and BT/Phorm are found guilty are custodial and a fine; if each count is penalised according to the legislation then we are looking at literally millions of years in jail with unlimited fines.
Of course it would be naive to believe that the court would impose maximum penalties for all counts, but I would expect at least the fine to be substantial and there would be no justification for not issuing a custodial sentence for the 5 years in accordance to the same legislation.
I made complaints under Computer Misuse Act (custodial and fines), RIPA (custodial and fines) and criminal Copyright violations under Copyright, Designs and Patents Act. So really the only acceptable outcome is for who ever was responsible for letting this happen either goes to jail or at least gets a suspended sentence. The fines should this be tried at the Crown Court or higher, is unlimited according to the law.
Just wondering if this sudden muscle flexing by the CPS is in any way connected to the forced resignation of NuLabour's favourite copper, Sir Ian Blair, Metropolitan Police Commissioner, and late of this parish.
Unbelievable that the gubunt can round up anyone in the UK and give them full bed and bored for more than 6 weeks and no proof of guilt but with all the evidence in the world including admission of guilt, the scum can be allowed to get away with it.
When and if the computers are searched there could be information that might not favour either the police or the cluberment. Someone in the know had given them the go ahead.
And what is this about stocks given to a new mismanager of B...ahem... a person of alternative employment.