The Article 29 Working Party ("WP29"), representatives of the European data protection authorities, published an opinion on apps on smart devices.

The WP29's opinions provide authoritative guidance on EU data protection rules. To access this opinion, please click here.

The opinion deals with data processing in the development, distribution and operation of apps on smart devices. The guidance is aimed at app developers, OS and device manufacturers, app stores and third parties (such as advertising networks).

Data protection risks

The WP29 identifies the following four key data protection risks in its opinion with regard to apps:

  1. Transparency

Information about data processing must be available to the user before (via the app store) as well as after installation of the app. In any case, the user must be informed of the following:

  • the identity and contact details of the data controller;
  • the precise categories of data that will be collected and processed;
  • the purpose of the collection and processing;
  • whether the data will be disclosed to third parties; and
  • how users can exercise their rights of withdrawal of consent and deletion of data.
  1. Free and informed consent

Consent can only be considered valid where the user has first been informed of the data that will be processed. The WP29 notes that there is a distinction to be made with respect to the legal grounds of consent on apps namely (i) consent for installation and (ii) consent for data processing, both of which are required. Clicking 'Install' will not be deemed as a valid consent for the processing of personal data. Both consents must always be provided in a free, specific and informed manner.

The WP29 encourages the use of granular consent: allowing the user to specifically control which data processing functions it will allow. Granular consent should be requested for several categories of data, such as location data, contacts, credit card and payment data and browsing history.

  1. Security measures

Data controllers must ensure data protection through technical and organisational measures. All relevant parties should take into account the principles of privacy by design and privacy by default. This means e.g. that already in the design stage requesting prior consent should be implemented in an app, or that default settings are such so as to avoid the tracking of users.

  1. Purpose limitation and data minimisation

The WP29 also underlines the principles of purpose limitation and data minimisation. This means that personal data should only be used for the purposes for which they were originally collected. Furthermore only personal data which are strictly necessary to perform a desired functionality should be collected.

Recommendations

The WP29 emphasises that privacy compliance should be implemented from the development stage for all parties involved. The WP29 expects far-reaching cooperation between the various parties to ensure privacy compliance on topics, such as consent, deletion of data and privacy-friendly defaults. Also, parties are encouraged to draw up technical solutions for issues, such as providing an easily accessible privacy policy on smart devices.

Also, the WP29 stresses that an app targeting users within the EU will need to comply with EU data protection rules. Therefore, in this context, also data controllers outside the EU will generally need to comply with EU data protection rules.

Another interesting point to note is the requirement for technical and organisational security measures that the WP29 places on parties. In order to comply with this requirement, the opinion states that parties 'have to take into account the principles of privacy by design and privacy by default'. This appears to be a precursor for obligations that will arise from the future European General Data Protection Regulation.