The action stems from secret trials of online behavioural targeting technology, which occurred in 2006 and 2007 but were only disclosed in 2008. The commission launched infringement proceedings against the UK the following year citing concerns about the way the UK government handled complaints about the tests and how EU laws had been implemented.

According to the commission, UK law falls short of what is required by the ePrivacy Directive and the Data Protection Directive in three areas:

• there is no independent national authority to supervise interceptions of some communications
• interception is permitted where there is “reasonable grounds for believing” consent has been given
• sanctions only apply to “intentional” unlawful interception

EU rules define consent as a “freely given, specific and informed indication of a person’s wishes”, while sanctions should apply to any unlawful interception, whether intentional or not.

The action has been referred to the European Union Court of Justice.