Instagram Slammed: A Cautionary Tale

Just because you can vary your Terms and Conditions, doesn’t mean you should.

The Terms and Conditions for most websites or mobile apps contain wording to the effect that the service provider can change or alter the Terms, Privacy Policy or even the services they are providing at any time, at their sole discretion. This unilateral right may or may not be accompanied by a requirement to notify their users of said changes.   Speaking generally, this can be viewed as a necessary evil of mass-subscribed web services or apps. To adopt a more balanced variation stance – changes must be individually agreed with every user – is simply not practical when dealing with thousands let alone millions of users. Those unhappy with the changes can simply stop using the service.   Still, December 2012 provided a clear case of the publicity nightmare that can result from exercising this right without regard for the feelings or views of your user base. Popular photo app Instagram sought to vary its Terms and Conditions through a rather brisk notice to users. Some of the juicier bits and pieces in the new version of the Terms were reported to read:

“You agree that a business or other entity may pay us to display your username, likeness, photos . . . and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.”

…

“You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such…”

These represented a significant expansion of Instagram’s rights (and the second has been labelled as legally questionable under English law). The response from users was swift, angry and quickly went viral. They rallied against the changes and high profile users picked up the cause – even celebrity juggernaut and most popular Instagrammer Kim Kardashian was reported to be considering quitting the service.   Instagram attempted to play down the changes (saying they failed to communicate their intentions clearly) but arguably the damage was done. Wired.co.uk now reports that Instagram has lost around half of its daily users in less than a month – a steady decline following the immediate dip which accompanied the announcement:

Where to now for Instagram?

Co-founder Kevin Systrom has stated “Instagram has no intention of selling your photos, and we never did”. Now Instagram has released yet another revised version of its Terms, ‘based on your feedback’. This version is greatly expanded but ditches most of the controversial language (though we note the ‘we may not identify paid services’ disclaimer remains).   On Intellectual Property / exploitation rights, the key section reads:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy…”

This licence is quite broad but when it is read with the Privacy Policy (which extends the term ‘information’ to user submitted content such as photos) the restrictions set out therein provide additional comfort to users. Adopting a ‘private’ setting is perhaps the most effective way users can restrict Instagram’s rights.   Time will tell if Instagram’s backpedalling will stall further user decline. At the very least, what is clear is that the right to vary online legal documentation must be exercised with caution and care. Service providers should endeavour to seek user feedback before and not after looking to impose significant and potentially controversial changes on their users.