Tuesday, 18 December 2012

Instagram: unacceptable terms and conditions?

Instagram has changed it's terms and conditions, now that it has been acquired by Facebook, and it has caused quite a stir! Unfortunately, every time these "OMG, has decided to sell my content without paying me!" claims come by, I view it with a huge pinch of salt.

More often than not the changes to the terms and conditions are made in such a way to ensure that in an increasingly distributed online world, the owners of these companies don't get sued simply for allowing the service to run as it was described. I would like to make it clear, I'm no lawyer, but I wanted to try and look at this from a less reactionary point of view.

With Instagram's new Terms and Conditions and Privacy Policy changes, there are a few changes that have specifically been flagged up, all around the issue of the rights of users and the company with regards to photographs/content posted to the site.

Declan McCullagh makes the claim that "Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency."

He goes on to assert: "That means that a hotel in Hawaii, for instance, could write a check to Facebook to license photos taken at its resort and use them on its Web site, in TV ads, in glossy brochures, and so on -- without paying any money to the Instagram user who took the photo"

I, however, am not so convinced. Taking a look at the terms and conditions it appears that the changes are very limited.

For a start the changes to how the website can license your photos is no different from any other social network, those crying about Instagram on Twitter, and about how they'll now delete their Instagram account ought to do the same for their Twitter account...

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- Twitter's Terms of Service

The reality is that this is a coverall to ensure that the services don't have to ask for your permission every time that your image is used somewhere as part of the service that you enjoy. If they had to pay you and ask for your permission every time that some 3rd party developer used their API to make a new web application or phone application to use their...your...data in a new way then the service would fail within weeks, days even.

Then there is the issue of selling your photos on. As Declan would put it...

'A second section allows Facebook to charge money. It says that "a business or other entity may pay us to display your... photos... in connection with paid or sponsored content or promotions, without any compensation to you." That language does not exist in the current terms of use.'

It's handy that he's omitted some words, obviously lacking in importance. Well, let's see how important...

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.

The key here is, in my opinion, that the whole policy here is about what is displayed on Instagram. The fact they talk about delivering means that it is Instagram that will be publishing such advertising content.

What could this be? Well how about the Facebook equivalent of sticking a sponsored story on your feed and telling you which of your friends have read/liked the content?

The fact is that Instagram collects all of your data, and has to retain ownership of it. But that's not enough. To bring other developers and businesses on board it also needs to know that it doesn't have to ask them to also ask you for permission for your content to be used.

Facebook is the obvious example of this, where it specifically uses avatars of your friends to indicate who has also liked a product or brand in a paid ad for that organisation. This, I feel, is what these rights are for.

There is no indication, whatsoever, that Instagram is asking for rights to allow them to sell your photos for worldwide use, as if it's some kind of photo stock library service. Indeed the terms retain the language that states that you can make it clear what content you're happy for them to use. Take a look at their privacy policy that spells out how they will use your data...

We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Instagram is part of, or that become part of that group ("Affiliates"). Affiliates may use this information to help provide, understand, and improve the Service (including by providing analytics) and Affiliates' own services (including by providing you with better and more relevant experiences). But these Affiliates will honor the choices you make about who can see your photos.

Notice that it is only this section that has any reference your your User Content (photos)? That sub-licensed, worldwide right to use your photography is purely to allow your photos to be shared between partners, and to be used on the kinds of widgets and apps that you no doubt think are part of the usefulness of the instagram service...

Next up is some scaremongering about your ability to bring charges against Instagram for making private photos public.

'The language stresses, twice in the same paragraph, that "we will not be liable for any use or disclosure of content" and "Instagram will not be liable for any use or disclosure of any content you provide."'

Except that also in that section it gives regard to it's own privacy policy, where it makes the assertion that private photos are not a part of such agreements. It no doubt has to have the right to disclose your content to partners, but it has also stated that those partners are under an obligation to honour your choices about who can see your photos.

Edit: Also, there is an criticism that Instagram will be able to keep using your content after you leave the service (if posted after the new terms come in to force). I am unsure about this, again it comes down to the Privacy Policy.

Following termination or deactivation of your account, Instagram, its Affiliates, or its Service Providers may retain information (including your profile information) and User Content for a commercially reasonable time for backup, archival, and/or audit purposes.

Yes, Instagram may keep some of your content. (elsewhere they state that content may be still be displayed in cache's or archives, or if saved by 3rd parties through their API). I imagine people will look at this and say "commercially reasonable, but that's as long as they make money from it!", I see it the other way. It's saying if you deactivate your account they will only keep your content for a period of time that doesn't cost them money to "keep in reserve" in case you reactivate the account.

Instagram's policy seems quite clear... we'll keep your content for YOUR benefit, in case you want to come back, but we're not going to keep hold of it for ever, costing us money to store but not do anything with. There is no denying, of course, that it's not explicitly saying that it won't continue to sub-license such content while it is still storing it.

"It's true, of course, that Facebook may not intend to monetize the photos taken by Instagram users, and that lawyers often draft overly broad language to permit future business opportunities that may never arise. But on the other hand, there's no obvious language that would prohibit Facebook from taking those steps, and the company's silence in the face of questions today hasn't helped."

Now I don't want to be misunderstood, I feel the terms are vague in places (as Declan states), and that as with all social media terms and conditions there are always risks that the terms could be extended beyond their original intention. It's not appropriate to look solely at the terms of service or terms and conditions, but ignore the context of a company's privacy policy. Misrepresenting what is actually written down, given how hard it is to get people to read actual terms and conditions in the first place, is an extremely unethical thing to be doing.