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It will no longer be enough to have "reasonable grounds" to believe that someone had consented to monitoring of their communications under changes to the Regulation of Investigatory Powers Act (RIPA) proposed by the Government.

Putting notice of monitoring in terms and conditions will not be enough to count as consent to that monitoring, the Home Office said. Its plans to change RIPA will mean that it will only be legal to intrude on private communications if you have a warrant or both the sender and recipient of information agree that it is acceptable, even if it is done unintentionally.

RIPA previously stated that, without a warrant, you only needed to prove there was "reasonable grounds" to accept consent had been given to allow communications to be intercepted.

"The changes to 'consent' touch on interception that may be lawful without a warrant. Communication service providers may lawfully intercept in accordance with ... RIPA, for example to manage their networks... Where businesses choose to carry out interception to provide value added services, which are at the discretion of service providers ... RIPA requires the consent of both the sender and the intended recipient of the intercepted communication," the Home Office said in its consultation summary on the issue (three-page/17KB PDF).

New powers would also been given to the Interception of Communications Commissioner (IoCC) that grant the IoCC the authority to impose fines of up to £50,000 for unlawful interceptions, the draft Regulation of Investigatory Powers (Monetary Penalty Notice and Consents for Interceptions) Regulations said.

"The Interception of Communications Commissioner may serve a monetary penalty notice on a person if the Commissioner considers that a person has without lawful authority intercepted, at any place in the United Kingdom, any communication in the course of its transmission by means of a public telecommunications system and was not, at the time of the interception, making an attempt to act in accordance with an interception warrant which might, in the opinion of the Commissioner, explain the interception concerned," the draft regulations state (11-page/136KB PDF).

The penalty would be a marked increase on the £10,000 maximum fine that the Home Office suggested when it launched its consultation. It said that respondents had submitted concerns that a £10,000 fine would be inadequate.

"The scope of the sanction will not be limited to CSPs (Communication Service Providers). Any person undertaking unintentional unlawful interception will now be within scope of the offence," the Home Office said in its summary.

The stiffer wording and penalties in the document have been included in the hope that it will appease the European Commission that had previously stated that the UK had failed to properly implement the EU's Privacy and Electronic Communications Directive into national law.

Last year the Commission referred the UK to the European Court of Justice (ECJ) citing concerns that UK laws did not adequately protect against intrusion into personal privacy.

The Commission's decision was prompted by complaints it had received from BT customers after it conducted unannounced targeted advert trials through a software company, Phorm. Phorm used its technology to intercept and monitor the web activity of BT customers to help match adverts to the interests of users.

Earlier this month the Crown Prosecution Service said that it would not launch a case against BT and Phorm as there was not enough evidence to convict.

The UK Home Office proposed amendments to RIPA in November in an attempt to address the Commission's concerns. It has now published a summary of its responses along with the draft regulations.

There is "strong favour" within the 39 consultation respondents for the adoption of "unambiguous" measures for users to have to grant consent before companies can intrude on their communications, the Home Office consultation summary said.

"Many argued that including relevant information within general terms and conditions or privacy policies does not allow for a sufficient expression of consent," it said.

Members of Parliament will now discuss the draft regulations.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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