Mad-as-Hell Instagram User Takes Fight to Court

Instagram’s recent changes to its terms of service have led one user to file a proposed class action lawsuit against the company, alleging breach of contract and other violations.

The suit, filed in U.S. District Court in San Francisco last week by California user Lucy Funes, claims that Instagram’s “unilateral” changes to its terms of use transfer “valuable property rights to Instagram while simultaneously relieving Instagram from any liability for commercially exploiting customers’ photographs and artistic content.”

The suit also notes that while users can decline to participate by canceling their accounts, they still forfeit rights to photos they have already shared.

An Explosion

The suit follows changes Instagram made to its terms of service earlier this month. These changes gave the company the right to share member photos in advertising without notice or compensation. Instagram included a mandatory arbitration clause requiring users to sign away their rights to participate in a class action lawsuit in most circumstances.

After an explosion of fury among its users, the company backtracked, albeit slightly, deleting the language about compensation.

Facebook, which acquired Instagram earlier this year, did not respond to our request to comment for this story.

A Well-Trodden Path

The Instagram controversy is the latest chapter is an ongoing story that involves not only Facebook, but also other social media providers. As for Facebook, this back and forth with users irate over changed privacy terms is old hat.

Facebook recently introduced changes to its own privacy terms — something it does quite frequently. The latest revision generally has been received as helpful to users, but critics have noted that it erodes just a little more of their rights.

They include a new request-and-remove tool for tagged photos and more transparency around the information that third-party apps want to access. However, they replace Facebook’s user voting system for privacy changes with a system that emphasizes “high-quality” feedback instead.

“The question is whether this lawsuit [against Instagram] and the growing discontent with privacy policies causes organizations going forward to have to more prominently communicate exactly what is and what is not private to existing members, and make it very, very clear to new members prior to signing up,” Matt Eventoff, principal with Princeton Public Speaking, told the E-Commerce Times.

“This is a communication issue as much as a privacy issue,” he said, “as if intent is clearly communicated at the outset, surprises do not occur later.”

Users Push Back

Even if social media providers step up their communication efforts, the genie may have already left the bottle.

As the Instagram suit illustrates, consumers are becoming more and more annoyed with the way their information is being used.

“I think the Instagram flap is an early warning of a much larger movement among users to seek to gain control over how information about them, content they create, and networks they belong to is used commercially by companies,” said Rita Gunther McGrath, an associate professor at Columbia Business School.

“I also think that incidents like the Connecticut newspaper publishing the addresses of licensed gun holders in towns in the area is starting to wake people up to the fact that data that were once safely held in musty old court logs can be obtained and published for whatever purpose the publisher wishes — these things will start to come together,” she told the E-Commerce Times.

What Industry Has to Say

From the industry side, the Instagram suit points to more litigation.

It will one day prove to have been the start of a bigger wave of privacy-related suits, predicted Mark Melodia, partner and co-head of Reed Smith’s global data security, privacy and management practice.

“While industry, the government and customers have been engaged in a serious dialogue seeking ways to strike a delicate balance between privacy and profit, the plaintiffs’ class action bar will take every opportunity to cash in on uncertainty,” he told the E-Commerce Times.

“That a company like Instagram, with a devoted fan base, is sued over a prospective change in its policies — when no harm or impact has been felt by anybody — shows that every company is at the same risk of backlash when it contemplates changes to its online ecosystem,” Melodia concluded.