Instagram’s revised terms of use: Will the Facebook generation fight back?

The Social Network seems so 2010.  Then, we all wanted to become accidental billionaires whilst making the world friends with each other for nothing.  Now, a seismic shift is occurring.  The Facebook generation is finally asking: ‘Is it really possible to get anything for free’?

Instagram, owned by Facebook, has become the apocryphal story.  If you want to know what your children are now addicted to, or about to be, go to Instagram’s website and have a look.  The marketing is simple and seductive.  There’s a picture of an iPhone (cool) in front of a device which is not an iPhone (but clearly on the ‘cool’ path).  There’s a simple message: “Meet Instagram.  It’s a fast, beautiful and fun way to share your photos with friends and family”.  And just in case you’re not sure, it then says: “Oh yeah, did we mention it’s free?”

Underneath, in the kind of small type which says “I’m really boring don’t bother looking at me”, and buried after about five other boring words is the word “Terms”.

And yet it was this simple, boring word which led to an instant and apparently huge decline of the app’s daily users, and caused celebrities such as the singer, Pink, to tweet in December 2012 “I will be quitting Instagram today. What a bummer. You should all read their new rules”. Pink’s reaction featured in online articles with titles such as ’15 Celebrities outraged by Instagram’.

Even Lena Dunham weighed in.  The comedic creator and star of Girls is the heroine of ‘new cool’, with 286,000 Instagram followers.  And yet she also posted “The only image I want Instagram to have til I understand new terms of use is this private shot I took of my body in a position which I could sustain at parties”.

People were upset, it seems, because they didn’t like the way their information was going to be commercialised.  Instagram had announced in December 2012 that it would revise its terms so that: “… you agree that a business or other entity may pay us to display your username, likeness, photos … without any compensation to you”.

On 19 January 2013, after mea culpas and mutterings of misunderstandings, new terms were revised and released.  Instagram emphasises, as in fact it did before, that it does NOT claim ANY ownership rights in the content posted on its services.

Does this mean the issue is at an end?  Well, there are reports that traffic to the site has returned.  And yet, the fine print remains worryingly broad for what is such a simple and elegant brand proposition.

For those worried that their information can be commercialised, it’s certainly true that photos and the like won’t be rented or sold to third parties without the user’s consent.  However, even if Instagram does not own users’ content, they still have permission to use it.  Instagram’s licence, for example, permits Instagram to use, modify, delete from, add to, reproduce or translate your content, which might include distributing it through media channels.

According to Instagram’s Privacy Policy, whilst Instagram will “honor your choices about who can see your photos”, your information can still be shared with Facebook.  It can also be shared with third party service providers.  And it can also be shared with third party advertising partners, so they can ‘among other things’ target advertisements to you.

Do Instagram users fully understand this?  It’s not easy even for lawyers to track through the fine print, so it is hard to see how users should be expected to follow suit.  Particularly if they are only 13 years old, the minimum age to join Instagram.

Instagram is popular with teenagers as TeenVogue exemplifies, encouraging readers to follow Instagram because “Zooey Deschanel posts nail art, Victoria Justice has a puppy cam, and Emma Roberts likes pizza”.  Whether minors can, or should be, expected to understand Instagram’s terms of use is relevant when working out whether they have the capacity to enter into a contractual relationship with the service.

For Instagram and other social media providers, this uneasy tension is unlikely to disappear.  The Facebook hoax late last year is a further case in point.  Users were happy to publish a fake, lengthy, quasi-legal disclaimer, attempting to enforce their ownership over their content, and to prevent Facebook from reproducing it for a commercial purpose without permission.  It had little meaningful significance, but people did it anyway.

It seems that, for this tech savvy, Internet reliant generation, the penny is finally starting to drop.  You may not pay money for using a social media platform, but you’re still striking a bargain.  The day may soon be upon us when, before signing up, the Facebook generation will want to know exactly what that bargain involves.