Instagram Denies Intent to Sell Users’ Photos

Posted December 20, 2012 in Internet Law Social Networks by

Two girls photographing themselves with a mobile phone


Instagram, the popular photo sharing social media program, announced new terms of service (TOS) on Dec. 17 that would allow the company to place users’ photos into ads without their knowledge and without paying them a penny.

After an enormous public outcry, the company, which was bought by Facebook in April for $1 billion, says it is listening to users. But it’s unclear if it will change anything. The new TOS are scheduled to go into effect on Jan. 16, 2013.


Ads Are King 

Instagram’s initial announcement contained the following language:

“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.

“You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.”

That seems to pretty clearly say that advertisers will pay Instagram (i.e., Facebook) to take users’ photos and put them in ads without either paying the users or even identifying that they are ads.

“Instagram should reconsider this policy, because it conflicts with the three key principles we developed for social networking services: informed decision making, control and the right to leave,” wrote Kurt Opshal, senior staff attorney at the Electronic Frontier Foundation.

Following a swift and unforgiving reaction from Instagram users – from stars like singer Pink to media personalities like CNN’s Anderson Cooper, and from two major and divergent modern institutions – photo-driven National Geographic and hacktivist group Anonymous – Instagram tried to backtrack.


Backpedal to Nowhere?

Instagram co-founder Kevin Systrom posted a message on Instagram’s blog on Dec. 18 saying the company just wants to innovate and that the language in the proposed TOS was misinterpreted to mean that “we were going to sell your photos to others without any compensation.”

“This is not true and it is our mistake that this language is confusing,” Systrom says. “To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.”

Here’s the updated language:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services 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.”

Notice the “pay us” and the “metadata” language is simply gone, replaced by the amorphous “Instagram may place…” language. It certainly doesn’t say advertisers won’t be paying Instagram for the use of users’ photos. 

Reaction to the revised language has been muted and cautious. “Whatever their intention, the key is the language of the agreement,” said Opshal of the revisions. “We look forward to reviewing the revised Terms.”


Same Ol’ Facebook Song and Dance

Parent company Facebook itself faced a similar issue with its sponsored stories – which not only provoked an avalanche of rants from users and privacy groups but also attracted an expensive lawsuit

Both cases point to the problem that “free” social networking sites are developing around how to make money off their users. “Facebook’s big problem continues to be how to monetize in a way that befits a company with a billion monthly users,” writes Haydn Shaughnessy for Forbes.

“Facebook [and other social networking sites] have business models that are at odds with the relationships they create with users,” Shaughnessy says, admitting he wonders how long they can last as a viable business. “Given that the model is to exploit the user, then long term friction is baked-in to the deal.”

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