Can Instagram Can Get You Sued?

Instagram photo by Dan Baxter

Instagram photo by Dan Baxter

On Monday, Instagram caused a stir when it released its updated Terms of Use, which state that:

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.

Almost immediately, users reacted with panic, with many interpreting the new language to mean that Instagram now has the right to sell its users photos to advertisers. And, unlike Facebook’s policy, which allows users to opt out of things like sponsored stories or having one’s image potentially used in an ad, as written, Instagram’s policy is all  or nothing. If users want to use the Instagram app, then they have to agree to all the terms of use. Instagram co-founder Kevin Systrom has since blogged,

it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.

Still, they haven’t yet posted the clarified terms, so we’re really not sure what the new terms of use means. I imagine that they are planning to create Facebook style sponsored ads, especially since they’re owned by Facebook. However, what I find most disturbing is something that to my knowledge has not yet been brought up, and that is the right to privacy, not of the Instagram users, but of the people who may appear in their photos, and how users may be held liable for violating that right. If I take a photo for non-commercial use, then there is no need for model releases from anyone who appears in the photo. However, if I use a photo for commercial work, such as the promotion of a product, then I need to have releases signed by anyone who appears in the photo. So how does this relate to Instagram? If I were to post a photo that I took at a party on Instagram, and Instagram then used that photo for some sort of advertisement, it’s possible that the people who appear in the photo could sue me, assuming I didn’t have them sign releases before posting the snapshot. Instagram, of course, passes any liability off to the user:

UNDER NO CIRCUMSTANCES WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE INSTAGRAM CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE INSTAGRAM PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS

The takeaway for me is that Instagram is creating a situation where people who use their service as intended may be liable for violating others’ privacy. Why is no one talking about that?

 

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Filed under Art, Art Copyright, Controversial Art

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