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Privacy activist to challenge BT, Phorm decision

Alexander Hanff will file for a judicial review of a decision not to prosecute BT and Phorm

A privacy activist plans to ask for a judicial review of British prosecutors' decision not to bring a case against BT and the online advertising company Phorm for running secret trials of a system that monitored peoples' Internet use without their consent.

Alexander Hanff, who has tracked the case for more than three years and now works for Privacy International, said he has three months to file for a judicial review.

The Crown Prosecution Service said on Friday that prosecuting BT and Phorm would not be in the public interest and that if taken to court, the companies would likely have faced only a nominal penalty.

BT ran three trials of Phorm's Webwise system, which monitors a person's Web browsing in order to serve targeted advertisements related to the person's interests. Two of those trials were conducted without informing users, but some participants who were involuntarily included in the program saw signs on their computers that the system was being used.

In 2008, Hanff submitted extensive documentation to the City of London police, which declined to bring a case. The CPS began examining the matter later that year.

Hanff is not satisfied with the CPS's conclusion. "I promised the public three years ago that I would not rest until all legal options have been exhausted or BT and Phorm are held to account in a court of law -- that promise still stands," Hanff said via e-mail to IDG News Service.

On Wednesday, a BT spokesman said it had no comment on Hanff's decision to apply for a judicial review. The spokesman said BT was pleased with the Crown Prosecution Service's decision and that it no longer has a relationship with Phorm.

Phorm, which has cut its U.K.-based staff and is focusing on markets such as Brazil, could not be immediately reached for comment.

Hanff said there is strong interest in the case. The European Commission said the Phorm issue was the second most complained about issue it had ever dealt with, and a petition presented to the office of then-Prime Minister Gordon Brown had more than 20,000 signatures, Hanff said.

In April 2009, the Commission initiated legal action against the U.K. for not fully complying with European Union rules regarding confidentiality of electronic communications in regard to Phorm.

In September 2010, the European Commission said it believed the U.K. was in breach of those regulations and referred the case to the E.U.'s Court of Justice. A spokeswoman said on Wednesday said the court's registry is reviewing the referral to ensure it can be accepted, and no hearing date has been scheduled.

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