Phorm and Fraud Act?

[Nicholas Bohm]

Peter Sommer wrote:
> Andrew:
> 
> I think you are probably right but, as with CMA,  the problem for a 
> prosecutor is proving the requisite intent:
> 
> In the Fraud Act the test is in s 2(2)(a) and (b):
> 
> 2) A representation is false if-
>  (a) it is untrue or misleading, and
>  (b) the person making it knows that it is, or might be, untrue or
> misleading.
> 
> In CMA the test is:
> 
> 3.-(1) A person is guilty of an offence if
> a.  he does any act which causes an unauthorised modification of the 
> contents of any computer; and
> b. at the time when he does the act he has the requisite intent and the 
> requisite knowledge.
>   (2) For the purposes of subsection (1)(b) above the requisite intent 
> is an intent to cause a modification of the contents of any computer and 
> by so doing
> a. to impair the operation of any computer;
> b. to prevent or hinder access to any program or data held in any 
> computer; or
> c. to impair the operation of any such program or the reliability of any 
> such
> data.
> 
> 
> Now in both instances if Phorm or an ISP are able to say they took legal 
> advice and followed it,  even if the courts later decide the legal 
> advice was wrong,  then for the purposes of both the Fraud Act and CMA, 
> they would appear to have a defence.    And there may be quite a number 
> of lawyers out there who initially do not understand cookies  - who 
> places them and in what circumstances.

The Fraud Act requirements seem distinctly simpler.  But when Andrew says:

> If presenting a cookie for the domain "example.com" is either an express
> or implied representation that what you are talking to *is* example.com
> then most, if not all of these, seem to be satisfied...

he raises the crucial question of fact.  This is partly a question of 
finding out what Phorm really does (and perhaps Richard Clayton will 
have more news for us on that in due course); but it is also a question 
of what a jury will accept is the representation made by the placing of 
a cookie.  Not many prosecutors will have much clue, I suspect, and will 
not be at all confident about what they can make convincing to a jury.

Nicholas
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