Clifford Gouldson Lawyers

FaceApp - but it was all in the terms of use.

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No doubt by now, you are aware of the recent social trend involving an App called "FaceApp". FaceApp allows users to upload images of themselves, and these images are morphed by artificial intelligence into an older version of themselves. FaceApp is downloadable through the Apple App Store and through Google Play.
The sharing of the morphed 'older version' images of ourselves has raised fresh concerns about what organisations like FaceApp can do with our selfies, pictures and our data.
We’ve had a look at FaceApp’s Terms of Use, and it reveals that by downloading the App, users actually agree to grant FaceApp:
“a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you.”
Yes, we agree that it is a mouthful, so we will translate it into plain english.
Basically, when a user downloads FaceApp and uploads an image to be morphed, that user is granting a perpetual, irrevocable and worldwide licence to FaceApp for a broad range of uses without any compensation or consultation with a user. 
A couple of alarm bells ring with this:

  1. FaceApp is not owned and operated in Australia and may not be subject to the levels of privacy protection as offered here in Australia.
  2. Users are also consenting to transfer their data overseas;
  3. Users are agreeing to release FaceApp from all liability, claims and damages (except arising out of their own negligence) regarding any dispute that a user may have with them or third parties;
  4. Users also agree to limit FaceApp’s liability and indemnify FaceApp in certain circumstances; and
  5. There are no provisions allowing a user to terminate the Terms of Use with FaceApp. We would recommend that concerned users email their support team to ensure that your information is deleted.

It may be the case that FaceApp is not looking to use users images for their own benefit or advertisement or promotional purposes. However, FaceApp can still do so under the Terms of Use, which users agree to when they download the App.
If FaceApp isn't a concern for you, then maybe Facebook is. Facebook does have similar rights to that of FaceApp under its own terms of use. In fact, Facebook can use your basic information to connect you with third party ads, offers, and other sponsored content specific to what you search online or connected to what your interests may be. Oh, and users also grant Facebook a similar irrevocable licence to use, store and share any status update, post, image and video that user’s upload to Facebook.
However, a point of difference with Facebook is that it allows users to end this license by deleting their uploaded content or account with Facebook. Although, this does not extend to circumstances where a user has deleted their content (to end the licence) and other users who had shared that post/image/video previously but have not removed them will still allow your content to be publicly available.
This reiterates that once your data is public and released into the Internet, then it is incredibly challenging to maintain control over that data.
Providing some data to an organisation that you are dealing with is somewhat inescapable even while we live in a time where privacy and cybersecurity is an ever-pressing issue.
So, you should read the terms and conditions and privacy policies of each App that you download or when you create an online account for any website.
Why? Well, besides the concerns raised with FaceApp above, the terms and conditions and privacy policies lay the foundation of your relationship with each organisation. They address critical contractual terms which affect you and your data.
It is vital that you are aware of and comfortable with the level of data and information that you are providing to organisations like FaceApp and Facebook. You should actively review their abilities to use and disclosure your freely given data and how (and when) you can ask that organisation to delete your information.
If you do feel that you need legal expertise and support to review any terms and conditions or privacy policy documents, then please reach out to one of our lawyers here at CGLaw.

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