Instagram's New TOS: On Data, Privacy and Fine Print

BlogHer Original Post

On Monday, Instagram offered users a look at the upcoming changes to the Terms of Service. Users were not pleased. Instagram always had rights to images, so was it the TOS wording or a TOS carrying Facebook’s legacy of privacy concerns that made the new fine print so concerning? In less than 24 hours, Instagram issued a statement the TOS changes weren’t set in stone. It reminded me of things I’d seen before. On Facebook.

IEP circle of trust IG TOS

In May of this year, I wrote several posts after screenshots of Instagram’s TOS went viral. The TOS had not changed. At all. But many people were getting their first look at what they had agreed to long before. They’d just never read it.

The unveiled TOS, which goes into effect January 16, included language that informed users “a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take.”

While the TOS has always provided them the right to use images, the updates had everyone from The New York Times to WIRED to the Twitterverse attempting to interpret the new legalese.

As a reader of fine print, I went to the source. Near the top, the update states the following in ALL CAPS bold letters:

“ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND INSTAGRAM WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.”

I couldn’t help but wonder WHY ARE THEY SO WORRIED I MIGHT WANT TO SUE THEM?

Much of the TOS was standard, but the paragraph under RIGHTS stating “you agree that a business or other entity may pay us,” to use your info didn’t sit well with many users. Some it felt an invasion of privacy (somewhat unfounded since they agreed to allow them some use of images the moment they joined Instagram). Others didn’t like hearing this would be done “without any compensation.” As a photographer who often argues for the importance of copyright respect online, I think this gave people some understanding of what content creators feel when they find their work unlawfully pinned or used without permission across the web. Only there isn’t anything illegal here. Permission is granted.

For some, this was the first realization of what they agree to share with most social sharing sites, but IG used wording that puzzled even those who understand what rights regularly we waive. In the next section it stated:

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

Undisclosed ads? This didn’t seem right. While many users are still clicking and agreeing without reading, there is now a large community, much of which I see in the blogosphere, that not only read TOS but understand things like FTC disclosure. The FTC and Facebook don’t have the greatest track record.

Just over a year ago, Facebook settled with the FTC after “charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.”

Is it surprising that people read the new legalese and imagine how far Facebook could take things? Show us we’re wrong, Mr. Zuckerberg.

Or should I say, Mr. Systrom. In a post on the IG blog Tuesday, explaining that they’re stepping back to reconsider the new TOS, it wasn’t Zuckerberg talking. He’d been the one to make the announcements about what he was doing with Instagram when Facebook bought it in April, but this post was by Kevin Systrom, co-founder of Instagram.

It answered a question friends and I considered just hours prior. How must the founders feel about the Facebook-ing of their platform? Perhaps they’d walked away knowing this was inevitable or worried as they watched their devoted users unhappiness. What never crossed our minds was that they would be part of these changes.

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