EyeEm, the stock photo marketplace, has updated its terms and conditions to specify that the company which was acquired by Spain-based Freepik in 2023, can use the uploaded content on the platform to train artificial intelligence (AI) and machine learning (ML) models. The platform has also told its users that in case they do not consent to this, they should not add any photo to the EyeEm community and delete all the existing images. However, another section of the terms and conditions highlights that if an account is deleted, the company will not payout the accumulated share of photographers.
According to a report by TechCrunch, the company notified its users of the change via email. The email reportedly highlighted that EyeEm was adding a new clause to its terms and conditions which would provide it the rights to leverage users' content to train AI. The email also specified that users had 30 days to opt out by removing all of their content. Notably, the publication also reported that EyeEm's photo library contained 160 million photos and had 1.5 lakhs users at the time of acquisition.
Has anyone figured out a way to batch delete their photos from #EyeEm. I got this email yesterday. While I only have 60 photos there, I'd prefer not to feed the training data beast for free… pic.twitter.com/lUuDR5BnGb
— Powen Shiah @polexa@tech.lgbt (@polexa) April 5, 2024
The Section 8.1 of the Terms & Conditions page of EyeEm contains information around ‘Grants of Rights' for its community including getting non-exclusive, worldwide, transferable and sublicensable right for its commercial activities. It now includes a new paragraph that states, “This specifically includes the sublicensable and transferable right to use your Content for the training, development and improvement of software, algorithms and machine learning models. In case you do not agree to this, you should not add your Content to EyeEm Community.”
While the company does give an opt-out, it requires them to delete all the content on the platform. Notably, many users are struggling to find a batch delete option for images, so those users are stuck deleting the images one by one. However, even if they delete the images at their end, the images already available in the marketplace or shared with its distribution platforms will not go away immediately. In Section 13, the company states, “Complete deletion from EyeEm Market and distribution partner platforms may take up to 180 days from the date of your deletion request.”
But there is more. In the same section, the company also adds, “All license agreements entered into before complete deletion and the rights of use granted thereby remain unaffected by the request for deletion or the deletion.” This means even the deletion of the content does not confirm revoking the licence granted to the platform if the user entered any licence agreements.
And finally, there is another caveat. In Section 10.3, pertaining to Licence Share and Payout, EyeEm states, “If your account is deleted, you lose the right to payouts for all accumulated and future Licenses Shares. Please therefore make sure that you submit a Payment Request prior to the deletion of your account.”
Based on the highlighted sections above, it can be gauged that the company has placed multiple conditions for users who do not want to consent to their images being used by the AI. The over-email notification, a short period of 30 days, and multiple hurdles including difficulties in deletion process such as requirement to submit a form to the company for marketplace removal, and risking the payout if the account is deleted is sure to create confusion and difficulty for users to opt-out.
Notably, the European Union, in its General Data Protection Regulation (GDPR)'s description of consent mentions, “Consent must be unambiguous, which means it requires either a statement or a clear affirmative act. Consent cannot be implied and must always be given through an opt-in, a declaration or an active motion, so that there is no misunderstanding that the data subject has consented to the particular processing.”
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