A few days ago, Instagram posted a little notice to all of their users. This notice was about changes to their ‘Terms of Service (“TOS”)’. If you were like me, you took small note of it and decided to read it later. And perhaps that is what Instagram was hoping everyone did because the changes were quite drastic. But, despite the uproar, it is most certainly legal.
The notification of Instagram’s new TOS came 30 days before the implementation of these changes on the 16th of January. Instagram has made amendments to almost all of their TOS provisions, but no changes are more troublesome to users than the “Rights” section.
Under the “Rights” section, it states:
This provision means that agreeing to use Instagram’s services, you are agreeing to let Instagram give third parties access to your photos. While Instagram states that users will still own their photographs, the company notes that by uploading your pictures onto their service you are giving Instagram permission to use your content as they see fit.
After outcry against the TOS changes, Instagram co-founder Kevin Systrom came out with a statement on the blog. The statement acknowledged the public concern, assuring users that Instagram had no intentions of selling users’ photos to advertisers or other companies.
From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one…[but] Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.
Still, Instagram’s stated intentions and the actual language of the terms are very different. A senior staff attorney at the Electronic Frontier Foundation notes that the language in the blog does very little to assure users that pictures will not be used by third parties — only a further revision of the TOS will shine light on that subject.
Despite trying to calm users: ‘I always want you to feel comfortable sharing your photos on Instagram and we will always work hard to foster and respect our community and go out of our way to support its rights,” many people have already or are planning to leave the service. Some of Instagram’s favourite celebrity users have already deleted their accounts. Other users cite how disconcerting it is to think about their personal pictures of family and friends being used without express permission.
So, is it legal? Yes, yes it is. Private companies can contract for most anything and when you sign up to use a service like Instagram you are asked to accept the Terms of Service — the “rules you must abide by in order to use the service”. Thus, by using Instagram you are opting in and you are legally bound by these rules once you start using the service.
With the new terms that Instagram is implementing the only way to opt out is to not use Instagram at all. A “you’re either with us or against us” mentality. While the legalese got us all into this mess, it won’t get us out.
Additionally, Facebook (Instagram owner) has been smart about class action lawsuits. A clause is included in their terms preventing such lawsuits by requiring legal disputes to go to arbitration. (Editors note: this interesting trend [and the death of class actions] is something we’ve been following on Article 3 for a while, from AT&T vs. Concepcion to the new Playstation TOS. Now, back to Facebook…)You can opt out of the arbitration. But only if you snail mail your opt out request. Now it obviously makes complete sense to use snail mail for a service that is entirely online…
What are your thoughts on the new terms? Will you keep your Instagram account? Will you snail mail your opt-out of arbitration?
And if you are looking to delete your account, WIRED has a good article about all you need to know to get gone on Instagram.
- Instagram: ‘We Don’t Want To Sell Your Photos’ (Updating) (gizmodo.com)
- Instagram Backpedaling on New Privacy Rules to Quiet Angry Mob (allthingsd.com