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).