Summary: From intellectual properly
ownership to data security, companies need to tread carefully when
formulating a BYOD policy, according to Madgwicks Lawyers partner
Legal risks around issues such as intellectual property (IP)
ownership and data security can present major hurdles for
organisations that want to implement an effective
bring-your-own-device (BYOD) scheme, according to Madgwicks Lawyers
partner Dudley Kneller.
BYOD is in vogue right now, and many companies are keen to put a
program in place to facilitate staff bringing their personal
devices into a corporate network, giving them more flexibility to
But a number of legal issues must be addressed when it comes to
BYOD, according to Kneller, who was speaking at the Informa BYOD:
2012 Conference in Sydney.
Yesterday, Tech Research Asia principal analyst Tim Dillon
legality issues around BYOD, specifically complications of
remotely wiping a personal device of a departing employee and data
retention compliance issues for companies.
Another legal concern organisations need to grapple with is who
owns any IP that was created on an employee-owned device for work,
according to Kneller. Traditionally, employees would do their work
on a company owned PC sitting in an office during the old
nine-to-five working hours. Any tangible work done by the employee
would belong to the company.
BYOD complicates things since staff can be doing work on their
own devices outside of traditional working hours, Kneller said.
"The move to mobility and BYOD makes the comfortable
position we are used to around IP ownership more challenging,"
IP ownership becomes even more muddled when bringing contractors
into the workforce, which is now common practice by many
"When they produce IP, unless an organisation specifically
arranges for the IP to be assigned to the company in writing, that
IP will remain with the contractors," Kneller said.
Then there is data privacy, which will become even more critical
next year when the Australian Privacy Act is amended to give the
Privacy Commissioner more teeth when companies compromise the
personal information of customers.
High profile data breaches suffered by companies such as
Telstra have put data security high on the radar of the Privacy
Commissioner, which has recommended a mandatory breach
notifications system be put in place.
While data security has traditionally been ensured by IT
departments, with BYOD, staff have to take care of it themselves,
"This wouldn't be much of a problem for the tech savvy
employees, but for a lot of users, that's going to be a very
uncomfortable road, and they will need some hand-holding," he
said. "A lot of confidential information comes into an
organisation in different ways, so from an organisational
perspective, you need to know what the obligations are in respect
to that information, and have processes around that manage it
"Technology can assist you in allowing access to relevant
information and denying access of information to certain users that
don't need to see that information."
Kneller acknowledged that BYOD is a reality, and rather than
avoiding it, companies should embrace it, but ensure the proper
policies are in place to avoid possible legal complications.
"This is a journey that doesn't give you the luxury of
starting from scratch," he said. "You need to look at
what you currently have in place so you can update, modify, and
build upon those existing policies."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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