Instagram, which spurred suspicions this week that it would sell user
photos after revising its terms of service, has sparked renewed debate
about how much control over personal data users must give up to live and
participate in a world steeped in social media.
establishing a new set of usage terms, Instagram, the massively popular
photo-sharing service owned by Facebook Inc, has claimed some rights
that have been practically unheard of among its prominent social media
peers, legal experts and consumer advocates say.
Users who decline
accounts, or they will be bound by the new terms. Another clause
appears to waive the rights of minors on the service. And in the wake of
a class-action settlement involving Facebook and privacy issues,
Instagram has added terms to shield itself from similar litigation.
All told, the revised terms reflect a new, draconian grip over user rights, experts say.
is all uncharted territory," said Jay Edelson, a partner at the Chicago
law firm Edelson McGuire. "If Instagram is to encourage as many
lawsuits as possible and as much backlash as possible then they
Instagram's new policies, which go into effect January
16, lay the groundwork for the company to begin generating advertising
revenue by giving marketers the right to display profile pictures and
other personal information such as who users follow in advertisements.
new terms, which allow an advertiser to pay Instagram "to display your
username, likeness, photos (along with any associated metadata)" without
compensation, triggered an outburst of complaints on the Web on Tuesday
from users upset that Instagram would make money from their uploaded
The uproar prompted a lengthy blog post from the company
to "clarify" the changes, with CEO Kevin Systrom saying the company had
no current plans to incorporate photos taken by users into ads.
declined comment beyond its blog post, which failed to appease critics
including National Geographic, which suspended new posts to Instagram.
"We are very concerned with the direction of the proposed new terms of
service and if they remain as presented we may close our account," said
National Geographic, an early Instagram adopter.
advocates said Facebook was using Instagram's aggressive new terms to
push the boundaries of how social media sites can make money while its
own hands were tied by recent agreements with regulators and class
Under the terms of a 2011 settlement with the
Federal Trade Commission, Facebook is required to get user consent
before personal information is shared beyond their privacy settings. A
preliminary class action lawsuit settlement with Facebook allows users
to opt-out of being included in the "sponsored stories" ads that use
their personal information.
Under Instagram's new terms, users who want to opt-out must simply quit using the service.
has given people a pretty stark choice: Take it or leave, and if you
leave it you've got to leave the service," said Kurt Opsahl, a senior
staff attorney with the Electronic Frontier Foundation, a Internet user
What's more, he said, if a user initially agrees to
the new terms but then has a change of mind, their information could
still be used for commercial purposes.
In a post on its official
blog on Tuesday, Instagram did not address another controversial
provision that states that if a child under the age of 18 uses the
service, then it is implied that his or her parent has tacitly agreed to
"The notion is that minors can't be bound to a
contract. And that also means they can't be bound to a provision that
says they agree to waive the rights," said the EFF's Opsahl.
Blocking class action suits
Facebook continues to be bogged in its own class action suit, Instagram
took preventive steps to avoid a similar legal morass.
terms of service require users with a legal complaint to enter
arbitration, rather than take the company to court. It prohibits users
from joining a class action lawsuit unless they mail a written "opt-out"
statement to Facebook's headquarters in Menlo Park within 30 days of
That provision is not included in terms of
service for other leading social media companies like Twitter, Google,
YouTube or even Facebook itself, and it immunizes Instagram from many
forms of legal liability, said Michael Rustad, a professor at Suffolk
University Law School.
Rustad, who has studied the terms of
services for 157 social media services, said just 10 contained
provisions prohibiting class action lawsuits.
effectively cripples users who want to legally challenge the company
because lawyers will not likely represent an individual plaintiff,
"No lawyers will take these cases," Rustad said.
"In consumer arbitration cases, everything is stacked against the
consumer. It's a pretense, it's a legal fiction, that there are
Instagram, which has 100 million users, allows
consumers to tweak the photos they take on their smartphones and share
the images with friends. Facebook acquired Instagram in September for
Instagram's take-it-or-leave-it policy pushes the
envelope for how social networking companies treat user privacy issues,
said Marc Rotenberg, the executive director of the Electronic Privacy
"I think Facebook is probably using Instagram
to see how far it can press this advertising model," said Rotenberg. "If
they can keep a lot of users, then all those users have agreed to have
their images as part of advertising."
© Thomson Reuters 2012