Published by LawTechie - January 17, 2013 - LawTechie

Internet LawyerRemember how, back in December, Instagram’s not-so-subtle attempts to strip users of their right of publicity resulted in a net-wide outcry and some serious backtracking by Instagram? (The right of publicity is a person’s right to choose to be associated with a commercial purpose such as appearing in an advertisement, and you can read about it in my original analysis of Instagram’s terms of use changes.)

Now Instagram has unveiled an updated proposed set of changes to its TOS and Privacy Policy which go into effect on January 19.

So what can we expect?

That express language about waiving your right of publicity is gone. Recall that the questionable language in the previous proposal was:

“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.”

Instead, the newly proposed language now just says:

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

In other words, while Instagram will not require users to expressly waive their right of publicity, the new language is vague enough about what Instagram can do “on, about, or in conjunction with your Content” that it implicitly amounts to pretty much the same thing. Keep in mind that the “Content” users post to Instagram mostly includes pictures of themselves, therefore any advertising and promotions “on, about, or in conjunction with” that Content would require an implicit waiver of the user’s right of publicity.

Instagram wasn’t kidding when, in its apology for the previous proposal, it wrote “Legal  documents are easy to misinterpret.” Seems like its strategy is to add some plausible deniability by making its TOS and privacy policy that much more difficult to interpret.

Perhaps I am being too cynical in suspecting that the new vague language is designed to allow Instagram to do exactly what they intended to do in the first place. And yet, please observe the new arbitration clause:

“Except if you opt-out or for disputes relating to: (1) your or Instagram’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 13 or 15 of the Basic Terms, above (“Excluded Disputes”), you agree that all disputes between you and Instagram (whether or not such dispute involves a third party) with regard to your relationship with Instagram, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury.

You may opt out of this agreement to arbitrate. If you do so, neither you nor Instagram can require the other to participate in an arbitration proceeding. To opt out, you must notify Instagram in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Instagram, LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park, CA 94025″

In plain English, this clause says that users agree to will submit to arbitration in any disputes where they would be plaintiffs (e.g., violation of their right of publicity, privacy rights, etc.) and waive their right to a class action law suit.

The practical effect of this is that users who have their privacy or right of publicity violated by Instagram’s vague new policies will never sue Instagram since per-user damages in such lawsuits are so small, they only make sense when combined in a multi-plaintiff class-action.

While arbitration clauses are becoming somewhat of a trend to prevent class-action lawsuits, now the question remains whether courts would actually uphold the language of Instagram’s arbitration clause in light of the weird mail-in opt-out policy which I have yet to see in any e-agreement. I’ll leave this question for a future post.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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