How FaceApp’s Terms of Use Could Open Risk of Infringement that You Can’t Fight

A popular photo app is receiving criticism over fears that personal data is being sold for unidentified purposes. FaceApp, which allows users to “age” their photos, had authorities in various countries warning the public not to use the service, as their privacy policy and terms and conditions give the company essentially unrestricted permission to use user data and make it difficult for users to fight back. World Trademark Review wondered whether FaceApp is violating users’ IP rights and contacted Finnegan attorney Linda Thayer in Boston for her thoughts on the issue.

Despite criticism, FaceApp’s terms of use agreement mirrors agreements for similar apps, where the app states that by agreeing to the terms, the user is granting the app a license to their content, name, and likeness. Linda said, “There’s nothing harmful per se about them asking you to give them a license [since the action is conducted by the app and not the user]. What troubles me is what comes after that.” This means that FaceApp is well within their rights to use user data for its own marketing purposes, celebrities included. Additionally, the policy states that users give the company permission to use their content “in all media formats and channels now known or later developed,” which means the user is agreeing to unknown hypotheticals. However, Linda said, “There’s a principal of contracts where you don’t agree to things you don’t know. You can’t evaluate how those future terms might affect you.”

Additionally, FaceApp’s terms make it difficult for users to dispute. All disputes are bound by the terms and settled through arbitration at the user’s expense. It also requires sending a physical opt-out letter to FaceApp’s office within 30 days of first use. FaceApp limits its liability to the amount paid for the services—at $3.99/month; Linda notes that “it would cost you more to file the arbitration claim than you stand to gain by recouping one year’s costs.”

However, FaceApp’s placement of the terms of use may provide a loophole for litigation. Most terms of use agreements for apps use a click-through agreement, where users knowingly consent to the terms by clicking accept. The free version of FaceApp doesn’t have this option. If a user upgrades to the pro version, there is an option link, but it is hidden. Linda said, “If you don’t have the click-through and you don’t have to read them, I suspect a number of users aren’t reading them. There’s a possibility that an arbitration clause and agreement would not be found enforceable if it was found that the user didn’t knowingly consent to the terms of the agreement.”