Data Protection and Privacy Considerations

If you handle personal data, it’s essential to understand the basics of the General Data Protection Regulation (GDPR). The GDPR is an EU regulation that governs the processing of personal data of individuals within the EU and requires data controllers and processors to protect this data according to specific requirements. For example, personal data must be processed lawfully, fairly, and transparently, and collected for specified, legitimate purposes. Organizations must also implement stringent data protection measures to ensure the integrity and confidentiality of the data and have robust procedures in place for managing data breaches, including timely notification to supervisory authorities, when necessary, among other requirements.

If your software enables electronic communications, it will also be subject to the requirements of the ePrivacy Directive. This includes ensuring the confidentiality, integrity, and security of electronic communications. For example, opt-in mechanisms must be provided for activities such as direct marketing. Companies often comply with this this by using a pop-up that clearly outlines key information about direct marketing activities (such as what data will be collected, the purposes for which it will be used, and to whom it will be sent), accompanied by a checkbox that is not pre-checked.

The GDPR and the ePrivacy Directive both regulate data protection and privacy, but they differ in scope. The GDPR is broader, covering all types of personal data, while the ePrivacy Directive specifically addresses privacy in electronic communications. Navigating the distinctions between the GDPR and the ePrivacy Directive can be complex, so seeking legal assistance is crucial to ensure compliance with these regulations.

Information Requirements: Dealing with consumers

Under the GDPR, you must inform users about how their personal data is processed. The ePrivacy Directive also requires clear and comprehensive information regarding cookies and other tracking technologies if your software facilitates electronic communications.

If you are selling your software to consumers, you must ensure that you provide clear, comprehensive, and accurate information about the software, including its main characteristics, price, any additional costs, and terms and conditions. This information should be readily accessible before the purchase is completed making it easy for the client to find —often provided on the webpage where the software is presented for purchase.

The contract information should include:

• Your contact information: include your address, email address and company formation details, including trade register number and VAT number.
• Delivery restrictions: mention any restrictions on delivery to certain countries.
• Right to cancel: Inform about the right to cancel the order within 14 days or any applicable exceptions.
• After-Sales Services: detail any available after-sales services.
• Dispute Resolution: outline how disputes will be resolved.
• Professional Association: Indicate any professional association to which you belong, if relevant.
• Interoperability: how the content operates with relevant hardware and software, as applicable.
• Functionalities: key functionalities of the software.
• Geographical Restrictions: any geographical restrictions on the use of the content.
• Private Copies: Whether making private copies of the content is permitted.
• Warranty: information about the legal guarantees and how consumers can exercise them.

By providing this information, you help ensure a transparent and compliant sales process for your software and digital content.

Please note, this article focuses solely on software developed entirely from scratch. For information on software developed using third-party or open-source software, refer to our guide on open-source https://www.loganpartners.com/open-source-licenses-a-guide-for-businesses/.

HOW CAN LOGAN & PARTNERS HELP?

Given the complexity of laws and regulations surrounding software development, we invite you to book a free 15-minute consultation with our experienced lawyers to answer your questions and provide advice tailored to your specific situation