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:

http://www.scribd.com/embeds/117579322/content?start_page=1&view_mode=scroll&access_key=key-g0tpmtmcov6dzdwslf9

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:

http://www.scribd.com/embeds/117579424/content?start_page=1&view_mode=scroll&access_key=key-216tx51akvmd8ogyhv5c

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