Instapanic: New terms grant Instagram right to sell users’ photos, share data and more

Shortly after Facebook announced its purchase of photo sharing app-maker Instagram last April, Imaging Resource reported that a segment of the latter's userbase was reacting to the news with alarm. A significant overhaul of Instagram's terms of use (TOU) and privacy policy, released today and slated to go into effect early next year, suggests that they may have been wise to show concern.

Should it wish to do so, Instagram's new terms give it sweeping powers to profit from its users' images without gaining individual consent, and without them receiving a share of the profits.

The changes have been widely dubbed the site's suicide note by some users, and it seems likely that if Facebook doesn't back down on the changes, it will find itself facing mass defections to rival services, much as Yahoo's now-defunct Geocities site did when it's terms of service were similarly updated a little over a decade ago. (In that case, Yahoo eventually backpedaled, but arguably significant damage had already been done by then.)

Of course, it was inevitable that the company's terms and policies would have to be updated post takeover, and many of the changes made are relatively benign, or even afford the Instagram site and its userbase with worthwhile protection. For example, the new terms of use are more explicit in banning the automated signups commonly used to create spambots, preventing users from abusing each other and the system, and disallowing photographs in a range of categories most users would find distasteful. The new terms also require that users abide by the Instagram community guidelines, which mirror a subset of the terms of use but in a friendlier and easier to understand manner.

The wide-ranging impact of Instagram's new terms of use

However, alongside these more innocuous tweaks, there are several changes in Instagram's TOU likely to prove showstoppers for a significant population of the Instagram community. Here they are in a nutshell:

• While it continues to note that it doesn't claim ownership of users' content, Instagram's new TOU now gives it transferable, sub-licensable rights to use that content. As before, it can do so without pay or royalties, on a non-exclusive basis. What exactly does this mean? Should it choose to do so -- and it's important to note that it hasn't yet stated any such plans -- Instagram could sell user content to a third party. Users would have no say as to which parties the content was licensed to, nor how it could be used, and they would receive no payment for that usage beyond having received their access to the Instagram service free of charge. Of course, the license is non-exclusive, so users could still profit from their works as well, but the fear here is that the change gives Instagram the power to create a massive library of stock photo images -- often complete with geotags and other personal information -- which could be used in advertising, marketing and more.

• The updated terms of use also grant Instagram the power 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," again without compensation to users. This would appear to give Instagram the ability to mirror Facebook's "social ads," which take advantage of a user's actions on the site to create more compelling advertisements -- for example, suggesting that you should buy a particular product because a friend or colleague has indicated a like for it.

• In this same update to the terms, Instagram has also suggested its belief that a minor under the age of 18 can consent to having their name, likeness, etc. used in advertising without the express consent of a legal guardian, simply by using the service. (As Instagram's terms put it, simply by using the site the minor would "represent that at least one of [their] parents or legal guardians has also agreed to this provision.")

• Curiously, the updated terms also suggest that Instagram can now run paid advertisements masquerading as site content, thanks to a provision stating that users must "acknowledge that we may not always identify paid services, sponsored content or commercial communications as such." The terms also allow Instagram to share information with third-party sites through external links -- presumably referring to the site's application programming interface (API) -- while disclaiming Instagram from all liability relating to the manner in which third parties make use of that information.

• The new terms also force through the relatively common provision that bars users from taking their grievances with the site to a court, either individually or as part of a class action. Instead, the terms provide only for arbitration proceedings as stipulated by Instagram, or for users to take their cases to small claims court.

• Until now, Instagram has pledged to alert the community via email to "material" changes to its terms of use, but in the future that, too, will be changing. Once the new terms come into place, Instagram will be able to change the terms of use as it deems necessary, and beyond updating the TOU document on its site, will not need to notify users of those changes. Should a user continue to access the service after a change, that will constitute acceptance of the change -- even if they've not seen the updated document.

With that said, the terms continue to make clear that if Facebook is on the receiving end of legal action due to copyright infringement and the like, that the responsible user(s) will be liable for all such costs. The updated terms also make clear that Instagram isn't to be held responsible for user-generated content that fails to meet its rules.

Instagram's data = Facebook's data

There's another key change to the Instagram privacy policy that will prove objectionable to some.

• By using the site, as well as agreeing to give access to your personal information and content to Instagram and to its business partners (advertisers and service providers), the new privacy policy also entitles Instagram to provide your information and content to parent company Facebook, as well as any current or future company in the same group. For individuals who have declined to sign up for Facebook so as to avoid providing their personal information to the social networking giant, that may prove a bitter pill -- even if it's so far still not violated the companies' pledge not to require a Facebook login to use Instagram. If you intend to remain an Instagram user, there's effectively no longer a reason to avoid signing up for Facebook, as the company will have access to your info and content regardless.

Another change is that the site's API will now be governed by a separate terms of use document, where previously it operated under the same terms as the rest of the site. Unfortunately, we can't comment on those updated terms, because at the current time the link to them simply redirects to the same TOU document applicable to the rest of the site.

There are numerous other changes to the TOU. For example, Instagram makes it more clear that even should you completely delete your account, some of your content may remain visible to users of the site, and may also be held for as long as necessary to fulfill legal obligations. The site has also granted itself the ability to seize usernames for any reason, where previously it could do so only in cases of trademark violation and the like. Other updates make clear that ideas sent to Instagram may be implemented without remuneration, that the site is unwarranted, that it cannot be copied or rebranded, and that Instagram is indemnified against the actions of its users.

To see the changes in full, take a look at the original terms of use and privacy policy, and compare them to the updated terms of use and privacy policy.

Weighing your options

If you find the new terms impossible to accept, your options are extremely limited. The new terms come into effect from January 16, 2013, and simply using the site after that date constitutes your acceptance of the terms. (Should you cancel service after that date, you will already be deemed to have accepted the new terms, and you will not be able to take any action beyond arbitration or small claims court, as the arbitration agreement "will survive the termination of your relationship with Instagram.") The only way to avoid agreeing with these updated terms -- unless Instagram should revisit its wording before they come into effect -- is to cancel your account before January 16, 2013. Should you decide cancellation is your only option, USA Today has some suggestions for alternate services you might want to consider.

Do you find the new terms objectionable, or are you happy to grant Instagram these expanded rights to your content and information in exchange for the service the site provides? Share your thoughts in the comments below.

(via C|Net, USA Today, Instagram, and more.)