On Monday, the popular smart phone photo app, Instagram, released a controversial updated version of its privacy policy and terms of service. The new language implicated a potentially startling change, which seemingly could allow Instagram to sell user’s photos to third parties for advertising. Numerous articles have speculated about the pending privacy implications and members have already publicly announced their departure from Instagram. On Tuesday, in response to the uproar, co-founder of Instagram Kevin Systrom replied to alleviate some of these concerns and suggested that the terms are not intended to give Instagram such broad controls.

New Terms

The updated terms of service included a controversial provision stating, “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.” Further, “You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.”

In contrast, the old terms only included a statement that the service could display advertising and promotions and that by assenting to the terms, users “agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.”

Interpretations of What the Changes Mean

The main concerned raised is that terms seem to give Instagram an unrestricted right to license all public photos to other organizations for advertising purposes. In other words, by uploading a photo to the site, users consent to Instagram’s ability to sell the photo for commercial purposes on any medium, and without any compensation. This also implicates that Instagram could profit from users’ photos and that advertisers could use the photos without users’ knowledge or consent. Electronic Frontier Foundation senior staff attorney Kurt Opsahl commented that the terms are “asking people to agree to unspecified future commercial use of their photos. That makes it challenging for someone to give informed consent to that deal.”

However, the terms could also be interpreted more narrowly, with less cause for alarm. The new policy may only give Instagram the power to link user’s photos to advertisements used solely in the Instagram service. In other words, users would not have to worry that their photos could show up on advertisements on billboards or the sides of buses; rather, photos could only be linked to advertisements within the Instagram service.

While the actual effect of the changed terms is not clear, the Instagram user community was certainly alarmed. Another concern is the fact that Instagram is open to anyone over thirteen years old. By accepting the terms, users under eighteen consent to the fact that their parent or guardian is aware that their image, username, and photos can be used in an ad. However, the service simply assumes parental consent. Plus Instagram assumes that underage users have not fabricated their age. Further, the terms do not provide an “opt out” process, so if you do not want to accept the new terms, your only option is to delete your account.

Instagram’s Response

The co-founder of Instagram responded to the uproar in a blog post on Tuesday. Kevin Systrom stated that the purpose of updating the terms was to help with advertising on Instagram. He acknowledged that, “it was interpreted by many that we were going to sell your photos to others without any compensation.” However, he clarified that, “This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos.”

Additionally, Mr. Systrom stated that the Instagram users own their own content and Instagram does not claim any ownership rights over the photos.  He further noted that users remain in control over who can see their photos. If a user’s privacy settings are set to private, their photos can still only be shared with people they have approved to follow them.

More specifically, Mr. Systrom commented on what the terms would allow Instagram to do. “Let’s say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way. In order to help make a more relevant and useful promotion, it would be helpful to see which of the people you follow also follow this business. In this way, some of the data you produce — like the actions you take (e.g., following the account) and your profile photo — might show up if you are following this business.”  This remark seems to imply that Instagram may be adopting a plan similar to Facebook’s. Facebook currently uses sponsored pages that link to friend’s accounts in order to promote advertising.

In sum, Instagram’s updated terms reflect its interest in experimenting with new ways of advertising in order to fund the app. Acquiring Instagram cost Facebook over a billion dollars and it needs to see a return. Instagram’s updated terms are not effective until January 16th, and we may see some new changes in the policy before then.

Lesson for Website/App Owners and Users

With news reports over policy changes becoming commonplace and because changes to such policies now require clear notification to users, users are becoming more aware and more concerned about the terms of policies they are subject to. Even though the uproar over these Instagram changes may have been exaggerated, it should remind website and app owners to carefully craft the terms and policies of their social media accounts for not only legal compliance, but to also consider how users may react to any changes.

For users, including businesses with social media accounts, it is important to remember that social media can be a powerful promotional tool but there is a possibility that your material may be used or viewed in unexpected ways. In order to be certain of what apps or websites may do with your content, you should endeavor to keep up to date with the policies of any social media accounts you use.