FaceApp's aging clickwrap methods will make their Terms of Use unenforceable

Aug 1, 2019 9:09:00 AM

FaceApp Blog-1

FaceApp has recently skyrocketed to the top of iTunes with over 100 million existing users, driven in large part by celebrities who use the app to post all sorts of AI enhanced images of themselves.  This massive popularity has put the FaceApp’s Terms of Use and Privacy Policy under public scrutiny, with headline after headline criticizing the broad rights FaceApp obtains to use images people upload to the app.  

The FaceApp Terms of Use, like most apps’ Terms, are incredibly one-sided - drafted with the sole purpose of protecting one party and shifting as much liability as possible away from that party. FaceApp’s Terms are no exception; they are meant to protect the business against any liability whatsoever and give them the free reign over the images uploaded to the app.

Unfortunately for FaceApp, its Terms of Use is likely to be unenforceable; that is, the app would have no rights to users’ images and no contractual legal protections from the potential angry hoards of consumers that the class action lawyers will inevitably assemble.

Let’s diagnose the missteps of  FaceApp and why their terms won’t hold up if presented in court.

FaceApp Never Provides Reasonable Notice that Terms of Use Exist

Terms of Use are a common form of contract between app owners and app users; however, for those Terms of Use to actually be binding and enforceable, the app user needs to, at the very least, be provided reasonable notice that those Terms of Use exist.  Here’s what FaceApp failed to do:

  • Mention Terms of Use anywhere in the iTunes app store;  
  • Mention Terms of Use on the screen presented the user when installing the app;
  • Mention Terms of Use anywhere in the app.

You can find a mention of the Terms of Use if you somehow figure out that the language at the bottom is scrollable. However, most courts no longer consider this inconspicuous method acceptable.

Related: Terms of Service Design No-Nos Part 1: Lack of Notice

Unfortunately, a user is able to “Subscribe Now” or “Decline this Offer” without the words “Terms of Use” ever being visible on the device screen.

faceapp hidden terms

 

The lack of notice will almost certainly prove fatal should enforceability of the Terms of Service be questioned:  if App users are never provided reasonable notice that Terms of Use exist, then it is impossible to claim that use of the app is subject to those terms.  There is ample legal precedent here, as GoGo's Terms of Use were found unenforceable despite having shown that their Terms of Use were at least visible.  

Terms of Use No-No: FaceApp Never Provides Clear Acceptance of the Terms of Use

Let's say, though it is highly unlikely, the courts rule that FaceApp provided reasonable notice of the existence of its Terms of Use. The next enforceability hurdle would be proving that there was some event in which user acceptance of the Terms was clearly manifested. That is, whether the user clicked a box or button that says, "I agree" or something similar.

It is not enough just to paste a link to the Terms of Use somewhere on your site or in your app. The user needs to take some action that signifies acceptance of the Terms. Usually, this would mean checking a box or clicking a button that is clearly identified as acceptance (i.e. “By checking this box, you accept our Terms of Use”).

FaceApp fails to take these measures into account on all fronts:

  • Nowhere near the “Subscribe Now” button or the “Decline this offer” link is there any notice that clicking on either means a user is accepting legal terms;
  • There is a good chance, based on how courts have interpreted screens like FaceApp’s in the past, that the only terms that MIGHT be enforceable are the subscription / renewal terms that the user sees on the device screen, as shown below:

faceapp first pageImage of FaceApp's Subscription Screen

  • Even if someone happens to figure out that the block of words is scrollable, the language that gives notice of the Terms of Use contemplates “signing up for a free trial”...not “Subscribe[ing] Now” nor “Decline[ing] this offer”:

FaceApp ToS 3

At no time does the app say anything about a “Free Trial.”  So if a user has no idea they are signing up for a free trial, how can they ever accept the Terms of Use?

Related: Terms of Service Design No-No Part 2: Lack of Recordkeeping

What does this mean for the enforceability of FaceApp's Terms? 

What is outlined above indicates some pretty serious issues for FaceApp, whose practice is contrary to established principles for enforceable Terms of Use.  What’s worse is that these outwardly visible signs of poor Terms of Use practices typically mean there are even bigger problems beneath the surface. For example, how would FaceApp even begin to provide granular proof that its 100 million users ever reviewed and accepted its Term of Use?

Without binding and enforceable Terms of Use, FaceApp has no rights to any of the images uploaded through the app.  Even more troublesome: in the event of a lawsuit, FaceApp would be unable to rely on important provisions intended to limit their liability and prevent class actions.

Do you know what your business's risk level regarding your clickwrap Terms of Service? Take our free self-assessment to find out!

Take our clickwrap litigation risk self-assessment

Brian Powers

Written by Brian Powers

PactSafe CEO & Founder