The European Commission asks the UK Government for an explanation

Fabio Colasanti, Director General of the EU's Information Society and Media Directorate wrote to the UK Government on 30th June asking for information about their response to the BT trials and possible deployment of Phorm's technology. The letter requested a reply within a month. On 4th September 2008, The Register reported that after the 31st July deadline was missed an extension was granted, and that The Department for Business, Enterprise and Regulatory Reform (BERR) would send a response during September 2008.

On 16th September 2008, the UK Government responded, setting out their arguments and explaining how they believed Phorm deployment could be lawful. In their public announcement they said nothing about the lawfulness of BT's trials of Phorm, how users could be sure someone else hadn't opted them in, or how civil or criminal copyright legislation might apply.

On 10th October 2008, the EU Commission responded, their spokesman Martin Selmayr saying that the UK had more questions to answer and that "For us the matter is not finished. Quite the contrary."

Four months later the EU Commission was still waiting for answers. On 11th February 2009, the European Commission confirmed in an interview that their investigation into the UK Government's response to Phorm was still ongoing. The Commission had written to the UK government for a third time at the end of January. "The Commission may have to proceed to formal action if the UK authorities do not provide a satisfactory response to the Commission's concerns on the implementation of European law in the context of the Phorm case."

On 6th March 2009, ZDNet reported that EU Commissioner Viviane Reding had discussed the UK Phorm trials with UK communications minister Lord Carter and that "The solution is going to be applied according to European law, with protection of privacy and opt-in. When the trial phase is over and the definite phase begins, the legal problems will be solved." However, she declined to give any further details.

The EU will investigate consumer profiling

On 6th March 2009, the Financial Times reported that European authorities were to investigate consumer profiling by online advertisers amid allegations by senior European Union officials that "basic rights in terms of transparency, control and risk" were being violated.

On 30th March 2009, TelecomTV confirmed that Meglena Kuneva, the EU's Commissioner of Consumer Affairs and Protection is to investigate so-called "deep packet inspection" technologies (as provided by the likes of Phorm) on the grounds that consumer profiling by online advertising companies based on the technology will breach consumer's "basic rights in terms of transparency, control and risk". She says that the vast majority of Europeans have no idea what personal data is being collected, how it is being collected, how safely it is being stored, who has access to it and how it is used for commercial purposes. They are also unaware that, as things presently stand, even when individuals believe they have opted out of deep packet inspection, the myriad of technological (and invisible) hurdles placed in front of them means that they may well have not actually done so.

The EU starts legal action on Phorm

On 14th April 2009, The BBC reported that the EU had initiated legal action on Phorm. "Technologies like Internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules," the EU's Telecoms Commissioner Viviane Reding said in a statement. She added: "We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of the EU rules on the confidentiality of communications." Ms Reding said Britain needed to to change its national laws to ensure there were proper sanctions to enforce EU confidentiality rules.

The Register published the EU's full statement and provided a link to the detailed telecoms infringement proceedings.

The UK Government responds to the EU

On 17th June a poster on NoDPI reported that the Home Office had confirmed that the UK Government had responded to the EU. The response had been formulated by several Government departments, but co-ordinated by the Home Office.

On 3rd July the Cabinet Office responded to a Freedom of Information Request stating that it would not be in the public interest to disclose the UK Government's response.