COVID-19 restrictions on the leisure, food & drink sector were relaxed in England on the 4 July, with other nations in the UK on differing timetables, and businesses are turning to app-based solutions to aid transition back to some form of normality.
The opportunity for pubs, bars and restaurants to re-open their doors has led many owners and operators to look at how best to minimise physical interaction between staff and customers and to fulfil the government’s request to keep a temporary record of customers’ contact detail for 21 days. As a consequence, the number of mobile app providers offering solutions has exploded, promising the apps can be quickly deployed by businesses and will be easy for customers to use. These offer services such as collecting customer details, booking tables or seats, ordering and paying for food and drinks, facilitating upselling and providing instant messaging between customers and the serving staff.
While the restrictions in maintaining social distancing for both customers and staff will severely reduce the capacity, the app providers promise they will help businesses mitigate the negative effects.
As attractive as those features may be, it remains important for businesses to consider whether the apps they plan to deploy offer them and their customers adequate legal protection.
Faced with an evolving government response, there has already been a proliferation of ‘quick-fix’ apps offered to businesses online. When we have reviewed some of these they have had spurious or non-existent data protection information, and would expose any company using them to a real risk of being non-compliant with data protection law.
Before buying and deploying an app a business should:
If a business is developing its own app, it should ensure that it is developed in accordance with the ‘privacy by design’ principles set out in the GDPR. These require that new technology is created with data protection at the core from the outset. Any business developing an app should also ensure that it:
It is also important to consider the ownership and protection of IP rights in an app.
Where a business is developing an app in-house, it should ensure that all copyright in the underlying code sits with the company. The default position where an employee develops an app in the course of their employment is that any IP in it is owned by the company, as the employer.
Where a business engages a freelancer or third party developer to create a bespoke app, the developer will retain the IP in that code unless there is an agreement to the contrary. In order to use the IP created by a third party, a business will need an appropriate licence or assignment, or to agree a transfer of IP with the developer.
Where a business procures an ‘off the shelf’ app, it will not own any of the associated IP. The business will need a licence to use it. This tends to be provided by the supplier, but businesses should ensure the licence terms are appropriate and provide it with sufficient rights and protections if something goes wrong (such as a significant loss of customer details). Although buying a licence of an ‘off the shelf’ app is likely to be much cheaper and quicker to deploy than having a bespoke app developed, it is less likely to mesh exactly with a business’s operations, so it’s important to ensure any third party app can be configured for effective use with a business’s particular ways of working.
Contributor: Harry Gillen
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions
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