By Zachary Paruch September 11, 2017

4 Legal Questions to Ask Yourself Before Launching a Mobile App

Launching a mobile app can be a daunting task. Not only do you have to ensure that it’s polished and running smoothly—which is no easy task itself—but also that you satisfy some key legal requirements.

Most developers overlook these critical requirements. The focus is understandably often on the present and everything that goes into launching the app—and not on protecting yourself from legal liability in the future.

You’ve built an app that works like it’s supposed to, and you’ve done everything you need to do to describe the app in appealing terms that accurately convey its functionality. Now you need to figure out how to meet those legal requirements.

Requirements vary depending on your state and target user base. Regardless of the specific requirements, you’ll need to include the appropriate legal documentation with your app.

With so much legal jargon thrown around these days, it’s difficult to know and understand which legal documents your application really needs. Terms like privacy policy, terms and conditions, DMCA, and EULA can be confusing; which of them are truly necessary for your mobile app?

And more importantly, is your app missing any of them?

Below, we’ve comprehensively outlined four essential legal considerations for your mobile app, and covered whether and when you need to take action to remedy them.

I’m going to share with you the same advice I offer to the small businesses I work with. But let me note that, although I consult with developers to tailor legal policies for their apps, I am not a lawyer. And while these considerations are crucial for your mobile app, it’s important to seek legal counsel from actual legal professionals.

1. Does Your App Collect Personal Information?

From a legal standpoint, this is the most important question to ask yourself about your soon-to-launch mobile application. If you collect personal information from your users, you are automatically subject to several state and federal regulations.

The mobile ecosystem is constantly evolving, allowing for more sharing of more information with more people—and parties—so it’s best to be cognizant of your own practices.

Personal information is defined as any information that can be used to personally identify an individual, and can include names, email addresses, birthdays, login information, credit card information, and device data.

There are several state and federal laws that pertain to the collection, storage, and use of personal information by mobile apps. The actions covered by these laws include the collection of information using tracking technologies like cookies. It also applies to the gathering of information by any third-party services you employ, including analytical software and payment gateways.

If your application, or any third-party service you use, collects—or has the capacity to collect—personal information from any of its users, you are required by law to post a privacy policy that addresses these practices in a conspicuous place.

This notice could be anything from a link placed on the home screen of your app to a fully embedded document in the “settings” section. While I’m not a lawyer, I do know that failure to do so may result in a fine of upwards of $2,500 per violation—meaning for every single user whose personal information was collected.

All major app stores, including Apple’s App Store, Google Play, and third-party service providers like AdWords, also have this requirement. So not only are you personally legally bound to provide a privacy policy, but you are required by your business partners to include one as well.

So what exactly is a privacy policy?

The definition of a privacy policy for mobile apps is: a legal statement that discloses, in detail, how you collect the personal information of your users, why you collect this information, and how you use it. The statement fulfills the legal obligation to safeguard user privacy, while also protecting the company from federal regulators and legal challenges.

The contents and individual components of such policies can vary greatly depending on the industry or business model, but they all serve to inform users of their privacy rights and, more than anything, keep online businesses and mobile apps protected and legally compliant.

If you or your third-party service providers collect personal information of any kind, your mobile app must have a privacy policy.

2. Do You Want to Establish Guidelines for Your App? (You Should)

Regardless of the type or functionality of your mobile app, there will certainly be some ways in which you don’t want people to use it. Inappropriate uses of the app could be anything from abuses to the app itself, or to other app users, to using it for something that could be considered illegal.

Although most people will use the app in the intended manner, there are always a few bad eggs out there. To deal with these bad eggs in a way that gives you legal ground to stand on, you need to have a comprehensive terms and conditions agreement in place.

A terms and conditions agreement—also called a terms of service or terms of use—is a legal contract agreed upon by you and the user. It is in this document that you state and describe all your rules, guidelines, and stipulations for the use of your application. These rules are decided entirely by you (ideally with the consultation of an attorney), and it is then up to the user to agree—or decide not to use the app.

This legal contract protects your position as the owner and proprietor of the application. It gives you the right to deal with abusive users on your own terms and have the law on your side.

You are also able to terminate the accounts of abusive users, establish the governing law in the event of legal disputes, and limit your own liability with regards to contributors and third-party links that may make their way onto your platform.

Additionally, it protects your intellectual property: the design, content, logos, images, and functionality of your app are all legally yours. All copyrighted and trademarked material on your app is part of your intellectual property. All this material has great value, in terms of money, time, and effort.

In your terms and conditions, you establish your legal right to this intellectual property. In the event that this property is infringed upon, having these clauses in your terms and conditions will protect your investment from a legal standpoint, and make it much easier to resolve in court.

Without a terms and conditions, you will be toothless in the inevitable battle with abusers and intellectual property thieves.

3. Do You Mind If Your App Is Replicated?

Imagine this scenario: you’ve spent hundreds of hours building and refining a novel app that has the potential to be extremely successful and propel you to a lifestyle you’ve only ever dreamed of. You’ve submitted it to your app store of choice, and things start to take off. The money starts coming in, and you’re feeling great.

Then, out of nowhere, an app so similar to yours that it can’t be coincidence pops up in the app store. Your sales and downloads start to dwindle as this new application gains traction. Even if you stay on top of this new competitor, it will always cut into your success.

So what happened?

Someone probably downloaded your app and reverse-engineered it so they could make a similar app for their own benefit. They didn’t copy the design or intellectual property of your app, per se, but at the same time, their app wouldn’t have existed without yours.

So how do you prevent your app from being reverse engineered?

Let’s start from the beginning. In order for anyone to download and use your application, it must first be copied. After all, you wouldn’t want someone to take your one and only original copy away from you. Whichever app store you decide on makes legal copies of your application, which users then download. Essentially, everyone that uses your app owns and uses a copy of the original.

For users to legally copy your property, you must first give them permission to do so. Developers give this permission in what’s called an end-user license agreement, or EULA.

An EULA is a contract between the user and the developer, which establishes the ways in which the app can be copied and used. As a rule of thumb, an EULA pertains to the macro use of the app—that is, the more global, external use, such as copying and reverse engineering—while a terms and conditions pertains to the micro use of the app—meaning use of features within the app itself.

An EULA is a necessity if you want to distribute your application via an app store. In fact, if you don’t provide one, most app stores have a default EULA that will be affixed to your app.

However, this default contract is not as thorough as you might want or need it to be—reverse engineering, in particular, is not addressed. For a more comprehensive EULA, it’s best to consult a lawyer or use one of the many EULA builders that can be found online.

An EULA is essential for anyone who builds an app (or any software, for that matter) and wants to distribute it without the fear of their ideas being stolen. A reminder: I am not a lawyer, so the best practice is to consult with a licensed attorney to include an EULA clause within your terms and conditions statement, which will give your investment all-around legal protection.

4. Are You Willing to Be Legally Liable for User Content?

Many applications have components and functionality that allow users to post content, which is known as user generated content (UGC). This type of content can include anything from images, articles, and links to external sites, or even usernames that are displayed publicly.

If this UGC is offensive or infringes on someone else’s copyrighted material, you could be liable in the event of a legal challenge. Something as small as a teenager registering under the name “Google” could trigger legal action—and your back would be up against the wall.

So what can you do to protect yourself and limit your liability?

The answer is simple: make sure you are compliant with the Digital Millennium Copyright Act (DMCA). The DMCA is a United States copyright law that went into effect in 1998. Basically, it gives online businesses and mobile applications immunity from user-uploaded copyright infringements and legal challenges stemming from offensive content posted by users.

It is essentially a get-out-of-jail-free card for your mobile app. However, again, I’m not a lawyer, so please consult with a licensed attorney for further details.

To comply with the Digital Millennium Copyright Act, all you have to do is register a DMCA agent with the United States copyright office. The DMCA agent can be anyone associated with your online business (preferably a lawyer), and he or she can be registered easily online.

Once you’ve registered an agent, you only need to add a DMCA clause—which outlines your policy relating to UGC and provides your agent’s contact information—to your terms and conditions agreement. Then, simply comply with takedown orders and notices, and your application is covered!

Don’t Wait Until It’s Too Late to Ask the Legal Questions

The road to launching your mobile app can be stressful and riddled with speed bumps and potential pitfalls. You can save yourself a lot of stress and headaches by simply asking yourself these questions and making the appropriate moves with your legal policies.

At the end of the day, the most responsible thing to do is consult with a licensed attorney for guidance when launching your mobile app.

About the author

    Zachary Paruch

    Zachary Paruch is a product manager and small business expert at Termly, where he helps to develop legal policy software for small businesses. When he’s not saving SMBs from lawsuits and financial ruin, he can be found playing soccer, binging a Netflix series, or getting a beer with some good friends.