It never fails. No one actually reads the various terms of service for the different online services you use, but when someone finally does -- out of boredom or (more likely) because the terms are changing (yet again!) -- it's not uncommon to see sudden mass outrage. It seems to flare up every few months. Last time around it was Pinterest
and this time it's Instagram, based on the claim that the company (now owned by Facebook) will have new terms that allow it to sell your photos to the highest bidder
, for which you will get nothing. There is some outrage over that (selling my
work!), but the thing that seems to be upsetting people the most is the fact that the company is reserving the right to have your images be used in advertisements. Here's the part in the new terms:
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.
This has created quite a bit of general outrage, though I'd argue that most (though, not all) of it is misplaced. There are some extreme arguments on both sides -- from Sam Biddle at Gizmodo telling everyone to "shut up" because they're acting like a "little whiny baby"
to David Meyer at ZDNet insisting this is a move too far, and is totally unacceptable
. Others are pulling out the "it's a business, what did you expect"
The most reasonable take I've seen so far comes from Kash Hill at Forbes, who goes through the new terms methodically
, explaining what they mean. The whole "use in advertising" thing sounds basically like they're going to integrate Instagram images into Facebook's existing efforts for things like "Sponsored Stories." If that doesn't creep you out, then perhaps you shouldn't be too worried about this new thing:
If this sounds familiar, it's because it's a page from the Facebook book. It sounds like Instagram is planning something along the lines of "Sponsored Stories." So if you go into a business and gram your experience, the business can use the gram in ads, probably targeted at your friends to encourage them to do the same. The fact that Instagram grants itself the right to use metadata is significant — that means it knows the exact location where a photo was taken, making it easy for businesses to know a photo was taken inside one of their fine establishments. A big question here is whether these ad campaigns will be limited to Instagram's (and Facebook's) platforms or if they will migrate outside of the Instabook ecosystem.
Le's be honest: Many of the photos on Instagram are perfect for this. A sample gram from my weekend: "Best bloody mary in D.C. At the Pig;" that's a Pig ad waiting to happen. Actually it's a Pig ad that already happened, but no one got paid for it. Most of us are already essentially packaging and advertising our experiences to our friends (as Joe Brown at Gizmodo makes clear); Instagram is wisely trying to make money off of it.
When pitched that way, it doesn't sound nearly as bad. After all, if you were talking about how awesome the burgers at your favorite burger joint are, is it so crazy to think that the burger place might want to repeat your enthusiasm as part of their push to get more customers? Furthermore, even if the terms are worded poorly (it's mostly boilerplate, and you'll find somewhat similar terms in lots of places) if Instagram really went out and started selling your photos to appear in, say, a big magazine or TV ad, there would be significant public backlash over that, such that it's probably in their own best interest not to do that without direct permission.
That said, there are a few questionable things in the terms that may lead to legal trouble. When they say: "You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such" they're asking for a beatdown from the FTC (though, the current Facebook terms
include an almost-identical item).
The thing that really surprises me in all of this is that Facebook/Instagram didn't see this coming. Perhaps it's because Facebook seems to do this kind of thing every few months -- in which they change their terms or launch a new feature that has a surprising impact on some element of privacy -- leading to mass complaints and outrage... which all gradually fade away. So maybe Facebook just figures to weather the storm -- and, chances are, for all the people complaining, very few will actually leave Instagram.
Still, earlier this year, Tumblr finally realized that it makes sense to put up plain language terms of service
that isn't chock full of legalese (beyond what's necessary) and which include straightforward explanations for what the different clauses mean and how they impact you. It seems like Facebook/Instagram could have cut off a significant amount of criticism of this move if they'd simply done that: better explain in plain language what they're doing and why they're doing it. Instead, just flipping the switch on new terms is bound to set off this kind of firestorm of anger.