Tuesday, 21 October 2014

A Developer's Guide to Privacy and Fairness?

Over the past few months I've noticed a range of different articles expressing privacy concerns about mobile apps, wearable devices and internet-enabled things, like smart TVs and bathroom scales ("the Internet of Things") on the one hand; and initiatives like 'Midata' to help you create your own 'personal data ecosystem', on the other. But regulation aimed at unfair trading is also relevant in this context, as are the various security requirements being proposed at EU level in relation to payments and 'cybersecurity' more generally. Official guidance in these areas is often broad but not comprehensive, as in the summary of privacy rules given in the context of Midata. It would be great to see a more concerted effort to draw all the guidance together. I have suggested this to the SCL. In the meantime, this overview explains briefly where to find guidance on meeting privacy and fairness requirements when using apps and other devices for consumer marketing purposes.

Note: as a developer, it's worth reading such guidance as if you were a consumer, to understand the regulatory intent. As a consumer it's worth reading guidance aimed at firms, since that gives you a better insight into how things actually work 'behind the scenes'.

The Information Commissioner has plenty of practical guidance on privacy in the context of cookies, mobile applications and data sharing (and a other guidance by sector or activity).

The Advertising Codes are important sources of information on how systems are supposed to behave in a marketing context.

PhonepayPlus has issued guidance on the use of premium rate numbers.

The Office of Fair Trading had plenty of guidance on how to comply with consumer protection regulation, which is now hosted by the Competition and Markets Authority, including principles for online and app-based games.

The OFT's guidance on what's appropriate in a consumer credit context, such as debt collection, is now in the FCA's consumer credit rules, and the FCA also recently consulted on updates to its guidance on financial promotions in the social media.

Firms seeking FCA authorisation often have to provide a lot of detail on their IT systems and governance in the process. The proposed new EU directive on payment services will broaden the range of regulated services and go into considerable detail on data security. In fact, security standards will be produced by the European Banking Authority, just to add to the confusion.

Knowing where consumers can complain is a guide to other regulators who may be interested in how your application works. There is an overview of UK consumer complaints channels here. There are specific complaints bodies for sectors, such as energy, financial services and telecoms, as well as for activities, like advertising and processing personal data.

However, it's you should be aware that the Data Protection Act gives businesses separate rights to process your personal data in the following circumstances:
  • for the performance of a contract to which you are a party, or for taking of steps at your request with a view to entering into a contract;
  • for compliance with any legal obligation, other than an obligation imposed by contract;
  • in order to protect your vital interests;
  • either for the exercise of a function conferred on a business by law or for the exercise of any other functions of a public nature exercised in the public interest;
  • for the purposes of legitimate interests pursued by a business or by someone else to whom the data are disclosed, except where that processing is unwarranted by reason of prejudice to your rights and freedoms or legitimate interests.
Public sector bodies also have certain rights to use your data which I haven't covered here. However, it's important to mention the ID Assurance Programme run by the Government Digital Service team, which has issued useful guidance on ID assurance. And the Connected Digital Economy Catapult that builds platforms for SMEs is due to develop a code of practice on consumer protection.

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