Are you launching an app? Policies and pitfalls

In addition to the technological considerations, there are also several legal considerations to be taken into account when launching a new app. As is elaborated below with regard to the two main platforms, App Store and Google Play, it is essential for the publisher to include the outcome of such legal considerations in a customised enduser licence agreement (EULA).

The Platforms

On App Store, a standard EULA is provided, and applies to apps that are made available on the platform. This agreement covers some of the main aspects of licensing, but the content makes it clear that the main objectives are to minimise Apple’s obligations and to indemnify the company from claims relating to the use of apps. As two examples of parts that are not in the best interests of the publisher, the standard EULA leaves out the matter of processing personal data and refers to definitions in American copyright legislation even in the Swedish version of the agreement. 

It is safe to say that there are gains to be made from creating an EULA on the basis of the characteristics of the app and the specific needs of the publisher. The standard EULA allows for such an alternative by stating that it applies unless there is a valid, customised EULA between the consumer and the publisher, in which case the standard EULA will not apply at all.

Two important points must be made with regard to this provision. First, the customised EULA must meet certain requirements set out by Apple in order to be deemed to be valid. Secondly, as the standard EULA will not apply at all when a customised EULA satisfies the minimum requirements stated by Apple, the provisions in the latter agreement must cover all aspects of licensing, including those that were regulated satisfactorily in the standard EULA. With Google Play, the situation is different. There is no standard EULA provided for apps on this platform, and Google therefore strongly advises publishers to submit their own. Similarly, as with Apple’s minimum requirements, every publisher on Google Play has agreed to the Google Play Developer Program Policies. When creating a customised EULA, the publisher must establish that the
agreement is fully compliant with these policies as well as with all applicable laws and regulations.

Key Provisions

There are a number of legal issues to bear in mind when creating a customised EULA. One crucial question is to decide to what extent the rights of the copyright owner are to be licensed to the end-user. In this regard, freedom of choice is considerably limited by Apple’s minimum equirements, and the corresponding provision in the standard EULA might therefore serve as a model to ensure that the provision that is drawn up does not cause the entire EULA to become invalid on App Store.

Another important aspect is the processing of personal data. The publisher needs to consider what personal data will be collected and processed within the app, and ensure that this processing complies with the applicable legislation. As stated in the Swedish Personal Data Act (1998:204) (Sw. Personuppgiftslagen), the processing of personal data generally requires consent from the person that the information relates to, and there is some personal data that is not allowed to be processed at all. For a publisher with a website, the EULA may very well make a reference to the privacy policy of that website by including a clickable link, after making the modifications to the policy deemed necessary owing to the scope of the app.

Apart from other essential points, such as limitation of liability and regulation of governing law, there is one relatively new aspect which it is necessary for publishers within the EU to observe. Since the Consumer Directive (2011/83/EU) came into force during last year, consumers
have a right to withdrawal within 14 days of purchasing any digital content from a company within the union. In other words, consumers are able to pay for and download an app, use it for 14 days and then get a full refund when they return it. Luckily, the Consumer Directive provides for an exception if consumers, prior to using the app, expressly consent to losing their right of withdrawal upon first use.

In conclusion, submitting a customised EULA may provide great advantages for a publisher on App Store, and is vital for a publisher on Google Play. At the same time, the liberty in the process of creating such a document is significantly restricted by law and contractual provisions  between the publisher and the companies responsible for the platforms. Every publisher should therefore ensure that their customised EULA is regarded as valid and compliant with the applicable legislation, while safeguarding all of the publisher’s interests.