Here are a few key updates:
- Nothing has changed about your photos’ ownership or who can see them.
- Our updated terms of service help protect you, and prevent spam and abuse as we grow.
We know these documents are a little dry, but they’re very important. Please take a moment to read through them so you keep feeling comfortable sharing your beautiful photos on Instagram.
A closer look at both updates reveals a number of changes and a few concerns which are not mentioned in this brief blog post.
This section is essentially a sort of acceptable use policy for the service and has been fairly dramatically expanded. For example, paragraph 3 of the current version states the following:
You are responsible for any activity that occurs under your screen name.
The same paragraph in the new version states the following:
You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Instagram prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Instagram upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
The new paragraph is very similar to the amended counterpart in Facebook’s Terms of Service and it is one of the clauses which reveals the Facebook integration and influence over Instagram’s operations:
We reserve the right to force forfeiture of any username that becomes inactive, violates trademark, or may mislead other users.
We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
The new paragraph 5 simply states the following:
We reserve the right to force forfeiture of any username for any reason.
There may be links from the Service, or from communications you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Service. The Service also includes third-party content that we do not control, maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web site or feature, including applications that connect the Service or your profile on the Service with a third-party web site or feature. For example, the Service may include a feature that enables you to share Content from the Service or your Content with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. Instagram does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that Instagram is in no way responsible or liable for any such third-party services or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Instagram has not itself provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the Instagram Parties (defined below) harmless for activity related to the Application.
Proprietary Rights in Content on Instagram / Rights
This section has changed quite a bit and is the source of some justifiable concern.
As a starting point and, in anticipation of media hype and interpretive challenges, Instagram does not claim ownership of any of you content. The big question is how broad the license it takes from you is and what that license enables Instagram to do? The current license basically states the following:
By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.
I added the emphasis on the core license scope. The new license states the following (I added the emphasis):
We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Instagram is part of, or that become part of that group (“Affiliates”). Affiliates may use this information to help provide, understand, and improve the Service (including by providing analytics) and Affiliates’ own services (including by providing you with better and more relevant experiences). But these Affiliates will honor the choices you make about who can see your photos.
Returning to the licenses, the new license introduces two important permissions: the ability to transfer or even sub-license the license you grant to Instagram. The license doesn’t limit who the rights you grant can be transferred or sub-licensed to (and the new license wording even drops the reference to a “limited license” in the current license wording although that phrase may be redundant) and doesn’t go into much detail regarding what “use” entails. The current license is more specific and allows Instagram to –
use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels …
The new wording is pretty vague and broad and one interpretive question is what “use” encompasses in the context of the new wording?
This part of the new wording is pretty worrying. It concerns advertising revenue and the change from the current wording to the new wording is dramatic. The current paragraph 2 states te following (I added the emphasis):
Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
- Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.
You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
This model takes the advertising mechanism beyond simply displaying ads in a way that you can see them. It brings you into the advertisements by using your image, your photos and metadata like location as well as your actions (liking or commenting on something, perhaps) and associating that personal information and content with the advertisements. This is something Facebook has been doing for a while and it implies an endorsement. Paragraph 3 stops just short of stating that Instagram will use your content and personal information to imply an endorsement of a company or its products without clarifying that the advertisement is, in fact, an advertisement that was paid for or sponsored.
While the more conventional display ad model raises privacy concerns with how the ads are targeted, this new model potentially has privacy, reputational and even commercial implications for Instagram users. A person may not wish to be so closely associated with a brand or a product for various reasons. That person may already be associated with a competitor as part of a commercial arrangement or the brand or product the user is associated with through this advertising model may run contrary to the user’s beliefs and preferences. This new mechanism gives Instagram the ability to trade off your identity, personal information and your Content and it begs the question whether the cost of using the Instagram service isn’t becoming a little too high?
Facebook has a very similar mechanism in its Statement of Rights and Responsibilities:
About Advertisements and Other Commercial Content Served or Enhanced by Facebook
Our goal is to deliver ads and commercial content that are valuable to our users and advertisers. In order to help us do that, you agree to the following:
- You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.
- We do not give your content or information to advertisers without your consent.
- You understand that we may not always identify paid services and communications as such.
Unlike the Facebook model (which is almost as invasive), the Instagram model doesn’t include an option to restrict this form of advertising using privacy settings in the wording itself. If you consider that Instagram is also available to minors from the age of 13, children under the age of 18 could find their identity, content and other personal information associated with brands and products without their knowledge (at least until their friends let them know) on the flawed assumption that they have their parents’ or guardian’s consent.
- Reporting Copyright and Other IP Violations;
- Disclaimer of Warranties;
- Limitation of Liability; Waiver;
- Time Limitation on Claims;
- Governing Law & Venue;
- Entire Agreement; and
- a very interesting section titled “Territorial Restrictions”.
This last section is a bit like the secret scene at the end of a movie. The premise of this section is as follows:
The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Instagram to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Instagram provides.
Either way, it is very odd.