There’s been a lot of talk on the web about two issues related to Instagram’s newest policy updates:
- The tech-lovers pointing out that the new policy isn’t too different from the old policy; and
- Users panicking that Instagram can now sell their photos online.
The fact is, both are pretty correct.
Yes, the terms are not that different. But what does that mean exactly?
It means that from the get go, Instagram reserved the right to use your photos in the public space. Those Instagram users that are not private are aware that almost anyone can access their photos, either through the app or the web version. That’s the idea behind the “open-web” theme propagating by companies like Instagram and Facebook. Their concern is not user privacy, and to their credit they never pretend that it was their number one priority. They are focused on bringing you an open platform to be social and create new social ties; if you are concerned about your privacy on social media sites, you can do one of two things: (1) get off the interwebs; or (2) memorize those privacy settings so you know what to do and not do to keep your data safe. (Yes, we said all of the interwebs, because even Google tracks your searches in order to give you a better user experience).
While Instagram has always reserved the right to use your personal photos in their own advertising campaigns, what’s got everyone in a tizzy is that the new language seems to indicate that Instagram can now sell your photos to third parties. That’s where it gets interesting.
Instagram, technically, does have a right to “sell” your photos.
We read this great article yesterday in The Verge that said, No Instagram does not have the right to sell your photos – except that it does. The article pointed out that companies can’t take a picture of you and slap their logo on it because that goes beyond “displaying” the photo into the world of modifying the photo.
But what advertisers can do is pay Instagram to take user photos and display them on their own site or advertising real estate. This means, if you take a photo of your baby wearing Baby Gap, then Baby Gap can pay Instagram to use your photo and display it on their site. They can say something like, “Look at the cute babies wearing Baby Gap!” There are deeper rules as to whether they can modify that photo (which they can’t), but that’s not enough to make parents feel safe about using Instagram to take pictures of their families.
Here’s the biggest issue: people don’t want their personal photos displayed on a company’s site/ad real estate because, well, people don’t like to be used without getting paid and without consent. In addition, many users post pictures of their families to Instagram – they don’t quite fancy having their 12-year-old’s picture on a company’s advertising. This isn’t the generation that sees their picture somewhere and thinks, “Oh my God that’s awesome!” This is the generation that says, “That’s not okay.” We’ve had clients file complaints with multinationals based on these scenarios. It’s not good for anyone, really.
So why the outrage?
The most interesting argument we’ve heard is, “Well you are consenting because you signed up for Instagram.” Yes, that’s true. Absolutely. But people are angry because they either have to agree, or they can’t use the service. That’s because it’s not a free market contract; you cannot call up Instagram and negotiate your own contract terms with them. It’s boilerplate and that’s that.
And when you take away a real choice, people get upset. It happens more often than not with web startups – because it’s a tension between how to make money and how to keep users.
Instagram has come out and try to do damage control. They are saying that they will not be selling user photos; but until they release an actual policy stating this, it’s still up in the air and the terms stand where they are.
For us – ours is an office divided. I, as a litigation attorney, am pretty positive I’ll be deleting my Instagram account. As for our corporate partner that knows all things tech-startup, he says he will be keeping his account.By: Benish Shah
Sardar Law Firm LLC
New York, New York Core Practice Areas: Fashion/Retail, E-commerce, Commercial Litigation, Art Law, Startup Law, Social Media, Mergers & Acquisitions, and Corporate & General Counsel Sheheryar T. Sardar, Esq. Sardar Law Firm LLC
New York, New York Core Practice Areas: Technology, Corporate & General Counsel, Startup Law, Project Finance, VC/PE, Arbitration/Mediation, Entertainment, and Human Capital