Enjoying Pleasure Island?

“Free” photo sharing service Instagram could prove costly for privacy conscious users

by Kerry O'Shea Gorgone |

After the recent kerfuffle over Instagram’s terms of service, the powers that be went back to the drawing board and, in the meantime, reinstituted their previous terms about advertising that had not raised as many eyebrows.

Much like Pleasure Island in “Pinocchio,” Instagram is packed with fun features, all for free, and few who enjoy playtime give much thought to what’s in it for the purveyors of pleasure.

In the (unlikely) event that you aren’t familiar with the changes Instagram made, the salient points are covered here. The one that sparked the most concern was the provision allowing Instagram to use user content in advertising without compensating (or even notifying) the user. Instagram has since clarified that it does not claim ownership in user content. Currently, the terms read:

 “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.”

Do note that this does not overtly state Instagram can “publicly display” user content for commercial purposes, but neither does it say they can’t. They actually did users a favor by temporarily rolling out those unpopular changes, because we’re clear now on how virtually limitless the potential uses are.

One Instagram user in California has already filed a class action lawsuit stating numerous causes of action, including breach of contract. Litigation seems premature, given that no advertisements featuring user photos have (as of yet) surfaced, but the case serves to underscore users’ dissatisfaction with Instagram’s actions.

Instagram has publicly stated that they have no intention of selling user photos, but users can’t realistically trust a promise that the company won’t exercise rights it’s taken such care to reserve. Furthermore, Instagram can (and will) change the terms again, and the ultimate objective will be to commercially benefit Instagram / Facebook. After all, Instagram is free, and if users are not the customers, they’re the product. It’s not surprising that Instagram wants to monetize. It was, perhaps, shortsighted to change the terms of service in such a broad brush way, without considering what kinds of advertising they might actually want to integrate, or how users might be permitted to opt out.

Users absolutely need to remain vigilant about privacy, security, and their intellectual property rights.

From a legal standpoint, Instagram overreached in this instance. To just skim the surface of potential problems, images depicting minors or anyone who has not signed a release cannot be used for promotional purposes. Even if the person who owns the copyright in the photo (the person who took it) consents by checking a box at sign-up, the model / subject generally cannot be bound this way, and so lawsuits would almost certainly result from any commercial use of those images. Users absolutely need to remain vigilant about privacy, security, and their intellectual property rights. You need to know what you’re giving up in exchange for the “free” admission to Pleasure Island.

However, if you’re displeased by what develops, you don’t have many options. As is the case when using any of the free social media sites, if you don’t like the games they play, the only real alternative is to delete your account and try a different service. There’s no denying Instagram has a certain charm, though, so I’m not anticipating a mass exodus.

As Hunter S. Thompson once said, “buy the ticket, take the ride.” I think many Instagrammers are still along for the “free” ride.

About the Author

Kerry O'Shea Gorgone

Kerry O’Shea Gorgone, JD/MBA, is a writer, speaker, lawyer and educator. She hosts the Marketing Smarts podcast for MarketingProfs, and teaches New Media Marketing and Marketing Campaign Development in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone