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Spyware and the law

Simon Briskman and Mark Smith Olswang

Published: 04 Nov 2004 17:08 GMT

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The Olswang View
In our view, the key issue is transparency. The article has emphasised issues of consent, information and authorisation, but the uninstallation or disabling of the application is another area that requires transparency. Users should be able to easily uninstall the software, preferably using the standard "Add/remove programs" functionality.

The consent to install the software should be clear and unambiguous, taking into account the variable computer literacy of users. The terms and conditions should also make it clear what will happen to the harvested data and should comply with the usual DPA consent requirements.

For those people offering freeware/shareware that incorporates adware, the industry shows that offering people an alternative "paid for" version of the software without bundled adware can be a viable marketing model. If adware is the “price” of the software, then users should know what they are installing to enable them to judge if the price is too high.

Self-regulation, coupled with technical developments (such as P3P machine-readable privacy policies) may well be the ultimate solution to the spyware. In the meantime, the law will undoubtedly continue to develop and play a part in the spyware drama. As the plot unfolds, we suggest businesses take the following steps:

• Educate yourself -- and your employees -- the more you know about the problem, the better equipped you’ll be to spot problems;


• Read clickwrap licences carefully – don’t just blindly click on "I accept";


• Use an anti-spyware application – there are plenty of good ones available;


• Keep your software (particularly your operating system and browser) properly configured, patched and up to date and make sure you use anti-virus and firewall software.

Authors: Simon Briskman, Partner, Olswang (simon.briskman@olswang.com tel 0207 067 3163) or Mark Smith, Assistant Solicitor, Olswang (mark.smith@olswang.com tel 0207 067 3215). The information in this Update is for general interest only and readers should seek appropriate and specific legal advice before taking or refraining from any action. Copyright Olswang.

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