Privacy in mobile apps

In January, we reported on the Information Commissioner's (ICO's) guidance on privacy in mobile apps for app developers together with recommendations to help consumers protect their privacy when downloading apps.

The guidance, aimed at app developers, highlights the importance of 'privacy by design' and advocates privacy friendly defaults and a high level of user control over their settings. It also offers suggestions as to how app developers can overcome the constraints of a small screen by, for example, breaking down privacy notices into small sections. The ICO highlights the importance of explaining to users why their information is being processed and of being transparent and not hiding important information or misleading the user.

The ICO says that where apps are funded by advertisers, those advertisers would be considered to be data controllers of any personal data they receive through the relevant app.

Guidance on apps as medical devices

One of the fastest growing areas of wearable technology is the market for wearable medical devices. Wearable medical technology is, understandably, heavily regulated at a national and European level but there is still a great deal of uncertainty about how the software in medical devices should be regulated. There is a particular issue with borderline medical devices like fitness monitors and when or whether they should be considered to be medical devices or simply recreational tools not subject to the medical devices regulatory framework. 

The MHRA issued guidance on when 'stand-alone software' defined as "software which has medical purpose which at the time of it being placed onto the market is not incorporated into a medical device" and which can include apps, qualifies as a medical device.  The guidance, which is very short, gives some helpful examples of things which may or may not lead to stand alone software being regulated as a medical device. It also provides links to other guidance and relevant legislation. This is a good starting point for product developers who are unclear as to which side of the dividing line their software will sit on.

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In-app purchases and advertising

There were a number of efforts to crack down on in-app purchase cost shock in addition to the OFT guidance in 2014. In relation to advertising, it is the Advertising Standards Authority (ASA) which has the power to examine adverts for apps and consider whether they are misleading about potential costs under the CAP Code. In July, we covered an ASA adjudication which determined that an advert for a "free game" was misleading as the quality of the game experience was dependent on in-app purchases.   

This adjudication was interesting because there was no dispute that the game could be played to a fairly advanced level without making in-app purchases. Despite the supplier producing statistics to back up the contention that gameplay was not severely limited by failure to make in-app purchases, and the fact that the product description and tutorial explained the function of the in-app purchases, the ASA found the advert misleading. The basis for the decision was the fact that in-app purchases had a more significant impact on gameplay than the consumer would reasonably have expected from the information given in the advert, both in terms of how premium currency could be accrued without purchase, and the frequency and duration of the timers which could only be bypassed using the premium currency. The ASA said the ad should have made clear what consumers could expect from the free elements and told that in-app purchases would have a significant impact on gameplay.