Tech Law: Media myths about the new Instagram Terms of Use

by Paul Jacobson (@pauljacobson) A number of media services are clinging to the idea that Instagram is selling users’ content and that Instagram has the right to do this in perpetuity. As usual, many of these media services have not taken the time to actually read and understand the Terms of Use or the changes that are coming next month.

The user-centric license model

The fundamental shift from the model in the current Terms of Use and in other services like Twitter and Flickr to the model in the new Terms of Use is pretty dramatic. The current model is, essentially, that Instagram can present ads to you, drawing on your personal information to make the ads more relevant to you. If you accept that you will be presented with ads to support the service that you otherwise use at no cost (aside from your attention and personal information), this model is not all that surprising.

This is what Flickr’s terms and conditions (actually, Yahoo’s, considering that Yahoo owns Flickr) say:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

Similarly, Twitter’s terms of service have a slightly different approach and focus more on the license required to make Twitter users’ content (including photos) available both on Twitter.com as well as through companies working with Twitter to publish Twitter users’ content:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).

Essentially, the licenses found in the current Instagram Terms of Use, the Flickr/Yahoo Terms of Service and the Twitter Terms of Service focus on the following permissions:

Using users’ content and personal information to present targetted ads based on users’ preferences and profile data; and/or
Allowing the service and companies working with the service to publish users’ content as part of making the service available.

Typically these licenses are limited to the purpose for which the users make their personal information and content available.

The social influence license model

The new Instagram Terms of Use’s provisions dealing with users’ content and personal information mirror the Facebook Statement of Rights and Responsibilities. Both sets of terms and conditions have a different focus based on some user psychology which Facebook exploits pretty effectively. The basic idea here is that you, as a user, are more likely to be influenced by what your friends are doing on Facebook and Instagram. Unlike the user-centric license model where the emphasis is more on the user more or less in isolation, the social influence license model exploits the underlying social nature of these services and how they are architected.

This model is a smart evolution of a popular legal framework by adapting it to fit the social sharing model far better. This model focuses on associating users, their identities and their content with a brand or product based on their personal information and activity on the service (the example we used in our previous post was of a Facebook user who “liked” a brand).

So far this isn’t new to anyone who has used these services but two things emerge from the new paragraphs in the new Terms of Use. Firstly, Instagram isn’t so much selling users’ content as it is selling access to users, their content and personal information to brands. Secondly, by relieving itself of the obligation to point out when ads are ads (or similar sponsored content or promotional updates), Instagram gives itself the freedom to present these ads and sponsored content as if they were updates and posts voluntarily published by users as endorsements of the particular brands or products.

Why do they do this? Well, it’s pretty simple. Other users will be more likely to take more of an interest in brands or products their friends seem to be interested in. The catch is that the users apparently endorsing those brands and products through an apparent association with them may not even be aware that they have been associated with those brands or products. In fact, as some commentators have pointed out, the person associated with the brand or product may not even be the user who published the content but rather other people in the photos concerned.

You could find that a photo of your kids has been used to promote kids’ toys or some recreational activity without your knowledge. Kids between the ages of 13 and 18 could be used to promote some trendy service and Instagram creates a presumption that the teenagers’ parents or guardians have consented through assumptions in the Terms of Use (which may not have occurred anyway), leaving these kids to prove they didn’t obtain the consent in the first place. This may not even be legal in countries with stricter privacy laws.

Put another way

Comparing the current Instagram Terms of Use to the new Terms of Use could also be framed as follows:

Targeted ads vs selling social engineering to advertisers

Content sales is an indirect benefit of the new licensing model but it is not what the new licensing model is all about. Exploiting our relationships with each other and the underlying social referral dynamic of the social Web is what the new Instagram Terms of Use and Facebook’s revised legal framework are designed for.

– Paul Jacobson is founder and director of Web•Tech•Law. Web•Tech•Law / CC BY-SA 2.5