"And the more the Grinch thought of this Who Christmas Sing,
The more the Grinch thought, "I must stop this whole thing!"

Lawyers are often perceived as the bearers of doom, providing you with reasons you cannot do something and curtailing excitement with tales of foreboding. As it's Christmas, let's take a different approach and instead embrace and encourage the wearable tech revolution.

Garry Mackay, partner at Ashfords, quotes from Dr Seuss' 'How The Grinch Stole Christmas'. Image credit: Flickr/Sarah_Ackerman

Yes, there are pitfalls and yes there are tales of foreboding BUT the benefit of innovation and the possible options that stem from it are endless and exciting.

Wearable technology is a phrase for devices that collect and access data and track what you (and they) have been doing. Whilst we have had wearable tech for years with such things as Bluetooth headphones and the Nike+ devices, the industry is still in its infancy.

The Samsung Gear, the fitbit, the Moto 360 and the ever-growing number of health apps are all embedding themselves into our everyday lives. The "killer" app or hardware that moves the industry from organic growth into a disruptive force has yet to emerge but it will happen.

In 2002, the US National Science Foundation predicted that within two decades, "comfortable, wearable sensors and computers will enhance every person’s awareness of his or her health condition, environment, ----- natural resources......" - whilst this is ambitious, it is creeping into everything we do. Smartphones now include health apps to monitor the number of steps you take, your heart rate and the amount of calories consumed.

The emergence of Google Glass, whilst clumsy in appearance, highlights the potential for information on the move with both the police and health services looking to use it. From a
business perspective, the potential for wearable tech is significant both in terms of revenue with the sale of devices to use (for example) within the business for encouraging staff fitness as part of an employee benefit scheme.

Legally there are concerns - it is important that users and businesses get comfortable with the opportunities that wearables present but also that they are mindful of the potential legal ramifications. This does not mean we should shy away from it but in order to maximise the benefit of the technology we need to be mindful to the risks.

Risks to keep in mind

The Data Protection Act (DPA): the DPA is often seen as a red tape burden for business, designed to thwart commercial exploitation. In fact the DPA is built on sound business principles of ensuring that the individual you are dealing with actually wants their information used in the manner it is being used. Wearables are no different - provided that businesses have in place clear mechanisms for obtaining consent to use data and have sufficient safeguards to protect that data then the risk is limited. There is a grey area, in that, forthcoming changes to data protection law will see greater emphasis on ensuring that customers have actually given consent rather than "implied" it and so procedures will need to be tightened.

Confidentiality: One of the major concerns will be confidentiality. Whilst this links in with the DPA, it can have wider ramifications. The level of fines levied by the Information Commissioner's Office for breaches are high (running into six digits on occasions) and with wearable tech focusing on sensitive areas such as health, the potential for greater fines is.

Employee Management: this has less to do with how the business operates but more how businesses limit employee misuse through covert recordings or "corporate espionage" with the theft of data. The latter is a risk that businesses face now with or without wearables but covert recording does have the potential for exposing employer practices and inevitable whistleblower claims.

Useful precautions to take

So how do businesses exploit the benefits that wearable tech brings without falling foul of the legal pitfalls? The opportunities continue to evolve but examples include:

Policies for employees: Clear internal policies including training will reduce risk. As important is ensuring that the IT, HR and Business managers are aligned on what is or is not acceptable. Too often, policies are drafted without internal consultation meaning that a policy says one thing whilst the business does another.

Contract: Employee contracts should be updated to reflect how wearable tech can/may be used.

Customer information and permissions: Communication to customers on what information is being obtained, how it is used and where it is held is vital for a business to stay within the law. Again, IT systems will need to be designed so as to accommodate, secure and manage collected data.

So in summary, the opportunity for businesses to exploit wearable tech is significant. Yes, there are legal pitfalls, but these are not insurmountable and the opportunity this new technology brings is vast.

So to quote Dr Seuss - "Welcome Christmas while we stand, heart to heart and hand in hand."

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