Another option re BT and Phorm

[Peter Fairbrother]

Alexander Hanff wrote:
> Hello everyone,
> 
> I understand where Nick is coming from with regards the probable outcome
> of a Judicial Review (whether we win or not - it is unlikely to change
> the decision).  I still think it is an important step though as if we
> win and the Police agree they broke the law but refuse to prosecute on
> the grounds of costs it would make a very public statement that BT have
> broken the law and got away with it; which would provide further
> ammunition for the EU Commission as well as cause a great deal more
> noise from the British public.
> 
> The other option is a private criminal case through the courts.  The
> police made me aware some time ago that individuals can prosecute a
> criminal case independent of the CPS.
> 
> Obviously the costs for this would be substantial and would require
> significant fund raising; but I really don't see how BT have a leg to
> stand on and provided we have good, strong and experienced counsel we
> should win (perhaps I am being a little naive in my faith of the
> judicial system but I have to believe that common sense will prevail at
> court and BT will be found guilty).
> 
> So I am at a junction and really don't know which turn to take next.
> What I do know however, is that I will not leave this as it is and will
> choose one or the other unless another option comes up.
> 
> Your thoughts would be appreciated.
> 
> Regards
> 
> Alexander Hanff
> 
> 
Can I ask, what are your priorities here? To get BT prosecuted, or to 
stop them doing it again?

Personally I think the latter is more important. Plus if it succeeds 
then BT are out all the money they have put into tests etc, so they 
won't go unpunished.


I think the judicial review should be pursued, even though it may not 
lead anywhere. First because I think it's a comparatively cheap process 
(though I'm open to correction on this). Second because afaics the 
Police never considered the dual-consent issue - and if phorm are to be 
stopped, that's what will do it. Third, it discourages the others from 
doing tests etc, at least until the result of the Police's 
reconsideration is known.

And fourth and last, as BT have said they intend to perform more tests, 
and thus commit more criminal offenses, the idea that it "isn't 
important enough", while it may be true of some ill-considered past 
actions, shouldn't really apply to preventing many and widespread future 
offenses. The matter will have to be considered at some point after all, 
if phorming goes ahead.

The last point may be a stickler - but I'd expect you'd get most Judges 
to overturn the Police's decision on procedural grounds.



A private prosecution, on the other hand, can't go forward without the 
approval of the DPP - which might be a problem to get. It will probably 
also be very expensive.


What might really work, in my opinion, is for a website owner to apply 
for a permanent injunction preventing BT from intercepting traffic to 
and from their site for any purpose to do with targeted advertising. 
This should include even looking at any traffic to see whether it's for 
that particular website, because that's illegal interception too.

It'll probably be cheaper than a private prosecution, and if granted 
it'll be just as effective in preventing BT, and in practice anyone 
else, from phorming.


I don't know whether there is some cheaper procedure for preventing a 
crime being committed after the intention to commit it has been widely 
and credibly announced - maybe you should ask a lawyer. For instance, I 
think it's probably very cheap, if not free, to get an order preventing 
an abusive ex-partner from coming near your house.




-- Peter Fairbrother