Using Netflix in South Africa is illegal

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions.

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions. Brett Haggard, writing for htxt.africa a week or so ago, pointed this out:

Right now, we’re told by inside sources at the big pay TV service providers on the continent (take a guess who, I mean, there aren’t all that many to choose from) that the digital rights for the popular television series we all crave so badly haven’t been signed, sealed and delivered to any one party as yet. Our sources tell us that, should anyone express any interest in bringing that content to the continent in a digital form, the big pay TV service providers will have the first shot at the action, in effect blocking the attempts of other players to get their hands on vital content licenses.

What this means is that the only legitimate means of obtaining much of the TV content (and probably the movies missing from the South African iTunes store) is through the local pay TV providers. The reason is what appear to be exclusive or pre-emptive content licensing deals the local paid TV providers have struck with the content producers or distributors. In many respects, this is the same issue we faced when the iTunes store was not yet available in South Africa (or, at least, where certain content or channels are not available here) and which I wrote about in my 2009 post titled “Legalities of US iTunes Store vouchers in South Africa“:

What does this mean? Well, the license granted to users is the set of permissions that give users the lawful right to consume that content. This is primarily a copyright issue. The content available in the store is owned by 3rd party content creators, publishers and other rights holders. They own the content and, through a license, grant users the right to consume the content.

So, for example, a music company owns the rights to an album that is available for sale in the iTunes Store. This means it likely owns copyright in that album and the bundle of rights that give it the exclusive rights to do various things with the content. In the absence of a license from the music company, you may not do much with the music. The license contained in the iTunes terms of service grants you permission to buy the album and consume it. In this case the license comes from Apple which was, in turn, licensed by the music company to sell the album to you under the license in Apple’s terms of service. It is a little complicated but the bottom line here is that the license in the iTunes terms of service is a series of permissions and restrictions. One of those restrictions is the geographical limitation of the iTunes Store’s availability. What that means is that if you purchase content from the iTunes Store in violation you are doing so in breach of the license and that, in turn, is a breach of copyright and is illegal. It is also a breach of your contract with Apple in the form of the terms of service and Apple could effectively cut your access to the Store and potentially the content you purchased from the Store.

Netflix users face a similar challenge and for similar reasons. The document which governs much of a Netflix user’s service use is the Netflix Terms of Use which begins with the following:

Welcome to Netflix! We are a subscription service that provides our members with access to motion pictures, television and other audio-visual entertainment (“movies & TV shows”) streamed over the Internet to certain Internet-connected TV’s, computers and other devices (“Netflix ready devices”).

These Terms of Use govern your use of our service. As used in these Terms of Use, “Netflix service,” “our service” or “the service” means the service provided by Netflix for discovering and watching movies & TV shows, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.

These Terms of Use cover a broad range of issues relating to your service use but if you skip to about halfway down, to section 6 titled “Netflix Service”, you will read these key clauses (parts c, e and f, respectively – I have highlighted the key sections):

You may view a movie or TV show through the Netflix service only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location. YOU MAY WATCH ON UP TO SIX UNIQUE AUTHORIZED NETFLIX READY DEVICES AND THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED. Go to the change plan information in the “Your Account” page to see the number of devices on which you may simultaneously watch. The number of devices available for use and the simultaneous streams may change from time to time at our discretion without notice.

You agree to use the Netflix service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix or its licensors. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Netflix service; use any robot, spider, scraper or other automated means to access the Netflix service; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Netflix service; insert any code or product or manipulate the content of the Netflix service in any way; or, use any data mining, data gathering or extraction method. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Netflix service, including any software viruses or any other computer code, files or programs.

The availability of movies & TV shows to watch will change from time to time, and from country to country. The quality of the display of the streaming movies & TV shows may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Netflix makes no representations or warranties about the quality of your watching experience on your display. The time it takes to begin watching a movie or TV show will vary based on a number of factors, including your location, available bandwidth at the time, the movie or TV show you have selected and the configuration of your Netflix ready device.

In other words:

  • Content availability is limited by geography (almost certainly because of the sorts of licensing deals Haggard alluded to in his htxt.africa article);
  • Netflix will use verification technologies to confirm you are in the country you say you are in (this is to help Netflix ensure it complies with its licensing obligations to its content providers);
  • You agree not to circumvent measures Netflix puts in place to limit access to its service or to make use of the content other than as permitted by these Terms of Use;
  • As we have seen with the local iTunes store, the range of content that is available in different regions will vary from country to country.

As with iTunes, there are ways to circumvent Netflix’s technologically-enforced geographical restrictions but having the capability to access Netflix’s content doesn’t equate to permission to access it. If you lack permission to access the Netflix content you lack a license to access that content and unlicensed or unauthorised access to the Netflix content is copyright infringement. In legal terms, this is tantamount to torrenting the content. The main difference is that consumers who go to the lengths of spoofing their locations to sign up to use Netflix are, at least, paying for the content. That should count for something but it doesn’t change the legalities of not complying with Netflix’s Terms of Use.

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p>If you are accessing Netflix from South Africa, you are infringing copyright and likely to be branded a “pirate”. At least you’re paying.

You are a soldier in Google’s Cold War with Facebook for social dominance

The underlying dynamic that likely drives Facebook’s and Google’s amendments to their policy and terms frameworks is that we users tend to place more value on recommendations from our friends and family. Facebook and Google’s advertising and promotional models (as well as a number of other services that personalise ads) are increasingly designed to manufacture these recommendations using our activities on the various services without the need for us to actively apply our minds to what we are recommending and what we choose not to. At the moment, the dominant model is one in which we choose to signify our approval of a brand, product or service by Liking or +1’ing it. These changes start to make those actions less important as a recommendation signal and are made possible through contractual models which include privacy policy frameworks and terms and conditions.

Shifting Publicity Policies

Between Facebook and Google, these two companies have voluntold[1] us that we are now part of their sales teams. It started with Facebook’s announcement on 29 August 2013 that it intends amending it’s Statement of Rights and Responsibilities (I’ll call it the “Statement” below) and the Data Use Policy which included an expanded section describing what personal information it intends using to, essentially, sell products and services using you to make that happen. Before I go into more detail, it’s important to note something about how these policy changes bind you.

Whenever services like Google and Facebook explain changes to policy frameworks and their terms and conditions, they explain that they won’t use your personal information in certain ways unless you give them permission to do so. They don’t but this is really just a ruse. You have already given them permission when you signed up to use the service and your permission takes the form of privacy policies that include your agreement that they can amend the policies and other terms and conditions pretty much at will. If they are going to be truly transparent, they should say something along the lines of –

unless you give us your permission to do so (which you have already, so thanks for that)

The underlying dynamic that likely drives Facebook’s and Google’s amendments to their policy and terms frameworks is that we users tend to place more value on recommendations from our friends and family. Facebook and Google’s advertising and promotional models (as well as a number of other services that personalise ads) are increasingly designed to manufacture these recommendations using our activities on the various services without the need for us to actively apply our minds to what we are recommending and what we choose not to. At the moment, the dominant model is one in which we choose to signify our approval of a brand, product or service by Liking or +1’ing it. These changes start to make those actions less important as a recommendation signal and are made possible through contractual models which include privacy policy frameworks and terms and conditions.

How You Are Selling for Facebook

The current Statement currently includes the following clauses dealing “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:

  1. 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.
  2. We do not give your content or information to advertisers without your consent.
  3. You understand that we may not always identify paid services and communications as such.

Note that you have already given your permission for Facebook to use “your name and profile picture” in connection with ads and sponsored content. The new, proposed version, goes even further and may (it hasn’t been finalised yet) state the following:

Our goal is to deliver advertisings and other commercial or sponsored content that are is valuable to our users and advertisers. In order to help us do that, you agree to the following[2]:

  1. 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, content, and information in connection with commercial, sponsored, or relatedthat content (such as a brand you like) served or enhanced by us, subject to the limits you place[3]. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.

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 the terms of this section (and the use of your name, profile picture, content, and information) on your behalf.[4]

  1. We do not give your content or information to advertisers without your consent.

  2. You understand that we may not always identify paid services and communications as such.

The other changes to the Statement addressed issues such as software installation, dispute resolution and a reminder that using mobile data could incur charges. The proposed changes to the Data Use Policy are pretty extensive and you have to read through the whole document to get a sense of the overall picture. For example, one of the edited clauses states the following:

As described in “How we use the information we receive,” We we also put together data from the information we already have about you,and your friends, and others, so we can offer and suggest a variety of services and features. For example, we may put together data about you to determine make friend suggestions, pick storieswhich for friends we should show you in your News Feed, or suggest people you to tag in the photos you post. We may put together your current city with GPS and other location information we have about you to, for example, tell you and your friends about people or events nearby, or offer deals to you in which that you might be interested in. We may also put together data about you to serve you ads or other content that might be more relevant to you.

Further down the marked up Data Use Policy, under part IV, one of the paragraphs begins with the following:

When we deliver ads, we do not share your information (information that personally identifies you, such as your name or contact information) with advertisers unless you give us permission.

It then goes on to describe how Facebook personalises ads. It is a very interesting read because it describes, in a fair amount of detail, how Facebook uses your personal information to sell relevant ads. It is a powerful model and the proposed changes to allow Facebook to incorporate more of your personal information into what are effectively personal endorsements is likely to be even more lucrative for Facebook.

The comment period for these changes closed on the 7th of September and we will have to wait and see to what extent these proposed changes will be applied. Of course these changes are not isolated. Facebook made a number of additional announcements recently which reinforce this trend.

The first change was fairly innocuous. On 30 September, Facebook published a post titled “Graph Search Now Includes Posts and Status Updates” which is fairly self-explanatory –

Starting today, Graph Search will include posts and status updates. Now you will be able to search for status updates, photo captions, check-ins and comments to find things shared with you.

Search for the topics you’re interested in and see what your friends are saying, like “Dancing with the Stars“ or ”Posts about Dancing with the Stars by my friends.”

The next announcement which attracted more interest was the announcement on 10 October which was styled as a reminder and is titled “Reminder: Finishing the Removal of an Old Search Setting” –

Last year we announced the removal of an old setting called “Who can look up your Timeline by name?” along with new controls for managing content on Facebook.

The search setting was removed last year for people who weren’t using it. For the small percentage of people still using the setting, they will see reminders about it being removed in the coming weeks.

Whether you’ve been using the setting or not, the best way to control what people can find about you on Facebook is to choose who can see the individual things you share.

More publicly shared profile data coupled with all that profile data being indexed by Facebook’s powerful Graph Search means that even more users’ personal information becomes accessible for use in personalised ads with the only limitation being selective sharing by choosing whether to share updates publicly or friends (this can be further delineated using friends lists if you use them). Assuming Facebook’s proposed changes to its Statement and Data Use Policy are implemented (and they likely will be, in some form or another), you can expect even more personalised ads that include what appear to be more personal recommendations from your Facebook connections. It is both very sneaking and, at the same time, very clever and you have agreed to this (whatever this turns out to be) already.

Yes, You Work for Google Too

Google’s approach is far more nuanced than Facebook’s and users do appear to have an option to opt-out of its personalisation model (and it is an opt-out, you are opted-in by default). The changes were announced on 11 October in a document that summarises the changes that Google will implement on 11 November 2013. In contrast to Facebook’s governance model which still allows for some degree of community involvement, Google tends to announce changes and implement them without much public consultation. Google explains its “Shared Endorsements” model as follows:

We want to give you – and your friends and connections – the most useful information. Recommendations from people you know can really help. So your friends, family and others may see your Profile name and photo, and content like the reviews you share or the ads you +1’d. This only happens when you take an action (things like +1’ing, commenting or following) – and the only people who see it are the people you’ve chosen to share that content with. On Google, you’re in control of what you share. This update to our Terms of Service doesn’t change in any way who you’ve shared things with in the past or your ability to control who you want to share things with in the future.

Feedback from people you know can save you time and improve results for you and your friends across all Google services, including Search, Maps, Play and in advertising. For example, your friends might see that you rated an album 4 stars on the band’s Google Play page. And the +1 you gave your favorite local bakery could be included in an ad that the bakery runs through Google. We call these recommendations shared endorsements and you can learn more about them here.

When it comes to shared endorsements in ads, you can control the use of your Profile name and photo via the Shared Endorsements setting. If you turn the setting to “off,” your Profile name and photo will not show up on that ad for your favorite bakery or any other ads. This setting only applies to use in ads, and doesn’t change whether your Profile name or photo may be used in other places such as Google Play.

If you previously told Google that you did not want your +1’s to appear in ads, then of course we’ll continue to respect that choice as a part of this updated setting. For users under 18, their actions won’t appear in shared endorsements in ads and certain other contexts.

For greater control over your experience with ads on Google, you can also use Google’s Ads Settings tool to manage ads you see. Learn more.

The main change to Google’s Terms of Service is this insertion under the heading “Your Content in our Services”:

If you have a Google Account, we may display your Profile name, Profile photo, and actions you take on Google or on third-party applications connected to your Google Account (such as +1’s, reviews you write and comments you post) in our Services, including displaying in ads and other commercial contexts. We will respect the choices you make to limit sharing or visibility settings in your Google Account. For example, you can choose your settings so your name and photo do not appear in an ad.

Google users can opt-out of this option and a help page explains the process. An interesting part of the process is the following (I highlighted the interesting bit):

Go to the Shared Endorsements setting page. If you are not already a Google+ user, you will be asked to upgrade your account.

Why is this interesting? Because it is a pretty devious way to persuade more Google services users to “upgrade” their Google accounts to Google+ accounts and integrate deeper into the broader Google platform. Driving Google+ user adoption (in other words, persuading users to activate Google+ integration) is how Google is going to make meaningful inroads into Facebook’s dominance on the social Web. It is Google’s metaphorical arms build up in its battle with Facebook for dominance on the social Web and for a larger stake in the social marketing space.

I imagine that even if you opt-out of the Shared Endorsements program, you will still see personalised ad suggestions. Reducing the likelihood of your personal information being used to personalise ads will probably require browsing the Web anonymously or, at the very least, reviewing your privacy settings very carefully and customising them to suit your preferences.

Caught in the Cross-Fire

When the media covers these sorts of changes, the implication tends to be that personalisation is bad and should be resisted at all costs. That isn’t necessarily the case. If you accept that you will be faced with ads in a service you find truly useful and don’t pay for, being presented with more relevant ads is probably going to enhance your experience of those ads. The real question is whether users have meaningful control over their personal information and can opt-out of personalised ads and still have use of these services. I think that answer will increasingly become “no” as more and more functionality becomes dependent on your participation, willing or not.

Facebook frequently talks about features it is removing and which were only used by a small percentage of users. Most recently one of those features is the option of not being included in Graph Search. The fact that so few users have enabled that option says more about how aware users are of these sorts of “features” and whether they are adequately informed about their value. The answer is overwhelmingly “very few” and “definitely not”. For the most part, users just want to post fun photos and videos and share stuff. They don’t think about how their rights are affected and that only changes when there is significant attention on major changes. To combat this, services like Google and Facebook have adopted the legal equivalent of stealth weapons and make use of nuanced language, misdirection and selective emphasis to deflect attention from the problematic changes.

What we see is a sort of war by proxy between the major social services and in which users could find themselves fuelling various services’ efforts to gain market share without being aware of much more than more personalised ads and begin prodded to “upgrade” their accounts to take advantage of the new flashy options. For so long as users feel they benefit more than they are prejudiced, this deal works for them but the challenge has always been whether users are aware of the extent to which their options are being limited and they are being traded for bigger weapons in this digital battlefield? The answer for the most part is “no” and that is not likely to change any time soon.


  1. It’s a made-up word for what happens when you sort of volunteer and are also told that you are signing up for something, especially when you don’t usually have much choice.  ↩
  2. I have marked up the proposed edits with strikethrough for deletions and bold for insertions.  ↩
  3. Isn’t this an interesting deletion?  ↩
  4. This is a challenging one. If you are under the age of 18 in South African law you may lack the legal capacity to agree to this so the consent Facebook takes may still amount to a violation of children’s rights to privacy.  ↩

LinkedIn’s expanded and more intelligible privacy policy

LinkedIn recently announced an update to its privacy policy and user agreement in a blog post titled Updating LinkedIn’s Privacy Policy. Although LinkedIn updated the user agreement too, the emphasis was more on updates to its privacy policy. The new policy expands on a number of issues and reinforces the extent to which users needs to take responsibility for their actions when using the service.

LinkedIn recently announced an update to its privacy policy and user agreement in a blog post titled “Updating LinkedIn’s Privacy Policy”. Although LinkedIn updated the user agreement too, the emphasis was more on updates to its privacy policy

Updated user agreement

The user agreement remained substantially the same as the previous version. The big change is more about layout and accessibility improvements. The new version makes use of summaries in a side panel which highlight the key points in the somewhat denser text in the main body of the document.

Other helpful features of the new version are a reminder about the contractually binding nature of the user agreement as well as a summary of the changes to this version (LinkedIn published a changes summary with its previous version in October 2012).

Updated privacy policy

The privacy policy received the same visual overhaul as the user agreement. An appealing change to the privacy policy which wasn’t applied to the user agreement is the use of a series of icons that remind me of the Mozilla-originated Privacy Icons project which was established to bring more clarity to privacy policies using descriptive icons. Although the icons in the LinkedIn privacy policy don’t go quite in the same direction or as far as the Privacy Icons project, they are helpful in ascertaining, at a glance, what the various sections are about.

One of the fundamental clauses in the privacy policy is the clause titled “Consent to LinkedIn Processing Information About You” which reminds users about the effect of the policy:

The personal information you provide to us may reveal or allow others to identify aspects of your life that are not expressly stated on your profile (for example, your picture or your name may reveal your gender). By providing personal information to us when you create or update your account and profile, you are expressly and voluntarily accepting the terms and conditions of LinkedIn’s User Agreement and freely accepting and agreeing to our processing of your personal information in ways set out by this Privacy Policy. Supplying information to us, including any information deemed “sensitive” by applicable law, is entirely voluntary on your part. You have the right to withdraw or modify your consent to LinkedIn’s collection and processing of the information you provide at any time, in accordance with the terms of this Privacy Policy and the User Agreement, by changing your Settings or by closing your account.

The new privacy policy goes onto quite a bit more detail about what personal information it collects from you and what it does with that personal information. For example, in the 2012 version, the privacy policy says the following about registration information:

When you register an account to become a LinkedIn user (“User”), such as your name, e-mail, employer, country, and a password.

In the new privacy policy, LinkedIn uses a more detailed clause:

To create an account on LinkedIn, you must provide us with at least your name, email address, and a password. You can choose to provide further information about yourself during the registration process (for example, your gender and location). We use this additional information to provide you with more customized services like language-specific profile pages and updates, more relevant ads, and more valuable career opportunities, and it may appear on your LInkedIn profile that is viewable by others. You understand that, by creating an account, LinkedIn and others will be able to identify you by your LinkedIn profile, and you allow LinkedIn to use this information in accordance with this Privacy Policy and our User Agreement. We may also ask for your credit card details if you purchase certain LinkedIn services.

Some clauses are entirely new and relate to LinkedIn’s expanded service offering. The clause dealing with “Address book, LinkedIn Contacts, and other services that sync with LinkedIn” deals largely with LinkedIn’s contacts import feature and its new LinkedIn Contacts app which combines contacts on your device with interactions on LinkedIn and select 3rd party services like Evernote and Tripit. This functionality introduces an interesting challenge, especially given LinkedIn’s professional focus. Users can add their contacts’ contact details and that information potentially has considerable value (imagine the value of, say, Richard Branson’s mobile number if you are fortunate to have it?).

LinkedIn allows users to remove data they have introduced to LinkedIn, to a degree. The following clause is part of the Address book clause:

Any information that you upload or sync with LinkedIn is covered by the User Agreement and this Privacy Policy. You can remove your information at your convenience using the features LinkedIn makes available or in accordance with Section 3. We collect information when you sync non-LinkedIn content—like your email address book, mobile device contacts, or calendar—with your account. We use this information to improve your experience. You can remove your address book and any other synced information at any time.

The user agreement’s relevance is largely that it contains license provisions which apply to content users submit to LinkedIn (for example, an image of Richard Branson’s business card submitted with LinkedIn’s CardMunch app). These provisions state the following (I highlighted some of the more interesting words and phrases):

You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. Additionally, you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including, but not limited to, any user generated content, ideas, concepts, techniques and/or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss. By providing information to us, you represent and warrant that you are entitled to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. It is your responsibility to keep your LinkedIn profile information accurate and updated.

Submitting information to LinkedIn requires users to take responsibility for what they are submitting. Bearing in mind that LinkedIn has extended its platform to 3rd party websites and services in a manner that is not all that different to Facebook’s Platform extensions (although Facebook seems to have taken more care to give its users options for removing information they submit to Facebook), sharing sensitive information with LinkedIn can have problematic consequences.

This is especially important bearing in mind LinkedIn’s “Indemnification” clause in the user agreement which provides as follows:

You agree to indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through LinkedIn.

Although LinkedIn references your ability to close your account and remove your data from the service repeatedly, it may not be quite so simple. LinkedIn reserves the right to retain data after you have closed your account. This is not unusual but you should factor this into your planning when you share information:

We retain the personal information you provide while your account is active or as needed to provide you services. LinkedIn may retain your personal information even after you have closed your account if retention is reasonably necessary to comply with our legal obligations, meet regulatory requirements, resolve disputes between Members, prevent fraud and abuse, or enforce this Privacy Policy and our User Agreement. We may retain personal information, for a limited period of time, if requested by law enforcement. LinkedIn Customer Service may retain information for as long as is necessary to provide support-related reporting and trend analysis only, but we generally delete closed account data consistent with Section 3.A., except in the case of our plugin impression data, which we de-personalize after 12 months unless you opt out.

This policy operates on the basis of consents users give to LinkedIn through the privacy policy itself. As this warning, below, points out, you agree to the user agreement and privacy policy (and subsequent changes) when you use the service. It is your responsibility to read the user agreement and privacy policy carefully and make sure you both understand the documents and are comfortable that your intended use of the service falls within the scope of that governing contractual framework and your comfort levels.

Thoughts about legal frameworks in the near future

A couple photos from the Deloitte Tech Trends 2013 event

We attended the Deloitte Tech Trends 2013 event at the Wanderers Club yesterday. It is an annual event and we had an opportunity to hear from several Deloitte executives, including Mark White, Deloitte’s Global CTO. Although the discussion focused on technology trends and how businesses are (and can) incorporate them into business processes (the emphasis was on business-driven technology implementations, not just technology for its own sake), we couldn’t help but think about the implications for legal frameworks and how law may be applied in a near future era of billions of smart and connected devices.

We created a Storify which is basically a stream of consciousness as we thought the process through in 140 characters at a time.

Instagram’s revised 2013 Terms of Use and Privacy Policy may not be better

Heavy Chef with Don Packett-6

Two steps back and to the side

Instagram revised its controversial Terms of Use after reviewing feedback on and criticisms about its proposed changes due to take effect in January 2013. Kevin Systrom published a blog post a few hours ago in which he included the following:

Earlier this week, we introduced a set of updates to our privacy policy and terms of service to help our users better understand our service. In the days since, it became clear that we failed to fulfill what I consider one of our most important responsibilities – to communicate our intentions clearly. I am sorry for that, and I am focused on making it right.

The concerns we heard about from you the most focused on advertising, and what our changes might mean for you and your photos. There was confusion and real concern about what our possible advertising products could look like and how they would work.

Because of the feedback we have heard from you, we are reverting this advertising section to the original version that has been in effect since we launched the service in October 2010. You can see the updated terms here.

Going forward, rather than obtain permission from you to introduce possible advertising products we have not yet developed, we are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work.

You also had deep concerns about whether under our new terms, Instagram had any plans to sell your content. I want to be really clear: Instagram has no intention of selling your photos, and we never did. We don’t own your photos – you do.

The bottom line (if you don’t want to get into some of the details below): if you were comfortable using Instagram before Instagram presented its new Terms of Use and Privacy Policy, you’ll probably be comfortable continuing to use the service.

Reverting to the current wording, sort of

The paragraph in the new Terms of Use which caused the outrage has been removed and substituted with the original paragraph from the current terms. It reads:

Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Service 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.

Instagram changed the preceding paragraph by shifting some emphasis to the new Privacy Policy. The amended paragraph states the following:

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, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.

The changes are highlighted.

Not necessarily better

This doesn’t mean that Instagram has capitulated and won’t ever use your personal information and content as part of an advertising model. It means that it will do so as you currently agree it may and that it may change the model later “without specific notice to you”. In some respects, this is a little more problematic because the current/revised clause is broad enough to allow Instagram to do what it described in the controversial clause which was just more explicit about the changes.

Aside from the third paragraph which remains in place (and which we repeated below), the changes appear to have addressed the main concerns about the update:

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

This residual paragraph opens the door for Instagram to still associate ads with your Content and not clarify whether this association is part of a paid service, sponsored content or commercial communication. This may a concern for people who are being paid to sponsor specific brands and products and who are prohibited from being publicly associated with competiting brands and products as the advertising Instagram could use could intefere with those sorts of restrictions.

An example of this could be a sports personality who is sponsored by, say, Adidas and who may be prohibited from any association with, say, Nike in public. If Instagram creates a Nike ad and places in on the person’s profile page or otherwise places it in such a way that its placement implies an endorsement by the sports personality because of something the sports personality posted or uploaded, that could create an issue with Adidas.

If you bear in mind that “Content” is defined as follows, you get a sense of how broad these paragraphs are:

any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials

Below is a comparison between the original 2013 version and the revised 2013 version. The marked up edits are changes from the original 2013 version to the revised 2013 version:

Other edits

Instagram also removed the odd insertion of the current terms after the Territorial Restrictions clause which was pretty odd. It also changed the revised Terms of Use’s implementation date to 19 January 2013.

The new Privacy Policy

Privacy Policies are really important documents. They are the means by which your consent to process your personal information is obtained and you agree to them when you start using a service or register for a service. You should read these privacy policies and adjust your privacy settings to suit your sharing preferences. We can’t emphasise this enough. As with most of the social services you use on the Web today, paying attention to your privacy settings and these sorts of documents is your only real tool for safeguarding your content and your personal information.

The new Instagram privacy policy which will be published in January 2013 highlights the linkages between Instagram and Facebook and how some of your personal information may be shared with Facebook and other “Affiliates”. The changes to the Privacy Policy are not quite as extensive as the changes from the current Terms of Use to the 2013 Terms of Use but there are a number of important edits.

For starters, the parties with whom Instagram may share your personal information have been somewhat expanded. This paragraph was added to the 2013 Privacy Policy:

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.

Notice the highlighted section? This is the permission you give Instagram to share your “User Content” and your personal information with Facebook and any other companies which become part of Facebook’s group of companies. In some respects, this is similar to Google’s recent move to consolidate its legal frameworks across various products and services. The term “User Content” is defined as follows:

content, including photos, comments and other materials

Another substantive change is the following paragraph which expands on a previous paragraph stating that Instagram would disclose personal information to law enforcement officials or otherwise where required by legal authority:

We may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards.
We may also access, preserve and share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; and to prevent death or imminent bodily harm. Information we receive about you may be accessed, processed and retained for an extended period of time when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible violations of
our terms or policies, or otherwise to prevent harm.

When it comes to storing your personal information, the amended Privacy Policy includes its Affiliates and, in some instances, Service Providers in the list of parties who may transfer and store your personal information. In practical terms this may mean Instagram can handle data somewhat more efficiently, such as taking advantage of Facebook’s new datacentres for storage.

Other than these more substantive changes, there aren’t many changes to the Privacy Policy. Below is a document highlighting changes from the current, 2012, Privacy Policy to the proposed 2013 version:

The Facebookification of Instagram’s Terms of Use

Update (2012-12-21): Instagram has published a revised version of the Terms of Use. You can read about the changes in our follow-up post.

Instagram_Icon_LargeInstagram announced changes to its Terms of Use and Privacy Policy in an innocuous blog post on 17 December 2012:

Our community has grown a lot since we wrote our original terms of service. To get things up to date for the millions of people now using Instagram, we’re bringing you new versions of our Privacy Policy and Terms of Service.

Here are a few key updates:

  • Nothing has changed about your photos’ ownership or who can see them.
  • Our updated privacy policy helps Instagram function more easily as part of Facebook by being able to share info between the two groups. This means we can do things like fight spam more effectively, detect system and reliability problems more quickly, and build better features for everyone by understanding how Instagram is used.
  • Our updated terms of service help protect you, and prevent spam and abuse as we grow.

This is just a small preview. Our new Privacy Policy and Terms of Service will be effective on January 16, 2013.

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.

New Terms of Use

To begin with, the new Terms of Use are dramatically expanded and run to over 6 000 words, compared to the current version’s 1 000-odd words. Comparing the two sets of Terms of Use side by side reveals that many of the changes are expanded versions of existing provisions but there are quite a few more substantive changes lurking within these expanded clauses and we have highlighted many of the more significant changes below. The way we have structured this review is by reference to the headings used in the documents. Where the headings are the same, we just used the heading title for both versions. Where the heading titles are different, we use the format “Old Heading / New Heading” so you can follow along with us if you are inclined to do so.

Basic Terms

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.

This particular change was more of an expansion of a relatively simple version of the paragraph. There are quite a few of these sorts of changes in this section of the new Terms of Use.

General Conditions

While not really a change to the Terms of Use, this section includes a new version of the following paragraph allowing for changes to the Terms of Use:

We reserve the right to alter these Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, we will notify you via internet mail according to the preference expressed on your account. What constitutes a “material change” will be determined at our sole discretion, in good faith and using common sense and reasonable judgement.

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, in our sole discretion, to change these Terms of Use (“Updated Terms“) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms.

This new clause is somewhat vague about which sorts of updates would trigger a notification to you and, even if Instagram does notify you about a change, your notification could be a publication to the Service. This means that you need to be fairly vigilant when it comes to updates to the Terms of Use and you should check in on the application version from time to time if this sort of thing concerns you.

It’s worth noting that Instagram reserves the right to take your username away in some circumstances. This isn’t new but given how much attention Facebook pays to brands and accommodating them in its services, your username could be vulnerable if it corresponds with a brand, among other things. The clause in the new Terms of Use is somewhat broader than the existing paragraphs 4 and 6 which state the following:

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.

A new paragraph 8 in the updated Terms of Use both acknowledges the more connected nature of the Instagram service and possible integrations with third party services:

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.

Aside from the obvious application to services that are not Instagram and the possibility that your Instagram profile and content may be integrated into those services, the way the key term “Service” has been defined introduces the possibility that Facebook may be one such “third-party web site”. “Service” is defined as “the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram”. This doesn’t appear to include Facebook so whenever you see a reference to “third-party web sites”, bear in mind this could well include Facebook and enable a workaround for the restrictions Instagram imposes on itself in the Terms of Use.

Proprietary Rights in Content on Instagram / Rights

This section has changed quite a bit and is the source of some justifiable concern.

Content Licensing

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):

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, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy, available here: http://instagram.com/legal/privacy/.

Notice how the publicity of private content shifts from no disclosure outside the Instagram Service to being able to control “certain of your Content and activities”. The new privacy policy includes this new addition to the section about sharing your personal information which is not in the current (soon to be old) privacy policy:

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.

What this means is that, under the new Terms of Use and Privacy Policy, your personal information and Content can be shared with Facebook and other companies that become part of Facebook’s group of companies. The way the Privacy Policy is framed, you agree to this merely by using the Service. Depending on how you feel about Facebook accessing your Instagram content and personal information shared with Instagram, this could be a big concern for you.

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?

Advertising

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.

This sort of provision is pretty common. You get to use these services for free and, in return, the companies operating the services make money by presenting you with advertisements. You may not like it but these services cost money to operate and these providers have typically worked to maintain a balance between presenting advertising in the most compelling way with not alienating users. The new wording in the Terms of Use not only expand this mechanism, they change the model dramatically and with the result that you truly are the product. This is what the new paragraphs 2 and 3 say (once again, I added emphasis):

  1. 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.

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

Pseudo-endorsement ads on Facebook-2This 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:

  1. 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.
  2. We do not give your content or information to advertisers without your consent.
  3. 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.

Other additions

The current Terms of Use pretty much stops at this point but the new Terms of Use includes a series of additional sections including the following:

  • Reporting Copyright and Other IP Violations;
  • Disclaimer of Warranties;
  • Limitation of Liability; Waiver;
  • Indemnification;
  • Arbitration;
  • 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.

Immediately below this section is a copy of the current Terms of Use. What is odd about this is that there is no indication what purpose repeating the current Terms of Use has. Are the old Terms of Use meant to apply where territorial restrictions render the new Terms of Use unlawful or unenforceable? Was this just an error when the new Terms of Use page was prepared? It this was intentional it looks as if the current Terms of Use may be a fall back set of terms and conditions if the new Terms of Use is legally problematic in some region outside the United States.

Either way, it is very odd.


As you noticed, we haven’t dealt with the new Privacy Policy in much detail in this post. We’ll explore the changes to the Privacy Policy in a further article.