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You’ve been framed: putting you in the picture with the Instagram deal

Instagram’s announcement yesterday of a new set of terms and conditions has elicited a backlash from many of its 100 million users, with many vowing to ditch the service before the changes take effect…

Instagram’s revised terms and conditions may or may not be good for your image. Philippe Moreau Chevrolet

Instagram’s announcement yesterday of a new set of terms and conditions has elicited a backlash from many of its 100 million users, with many vowing to ditch the service before the changes take effect on January 16, 2013.

The crux of these changes is that Instagram, a photo-sharing mobile app launched in October 2010 and bought by Facebook for nearly US$1 billion in April, has the right to take photographs from user accounts and – potentially – sell them to advertising companies, without revenue going to the account holder.

In case it was needed, this is another stark reminder of the vulnerability of our data online - but what does it really mean, and is it really a privacy issue as many are claiming?

A bit of T&C

The controversy surrounds Instagram’s proposed terms and conditions that permit display advertising next to users’ images and the potential sale of users’ content to third parties without compensation.

Most users would be comfortable with advertising when using commercial services – that’s how the web goes round. But the license to provide images to sponsors without compensation is more controversial. Instagram’s proposed terms and conditions state:

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.

fusionmonkey

For those under the age of 18, the terms state that by agreeing to them you represent a parent or legal guardian who has agreed to the above provision.

High profile users, including Pink and Mia Farrow, have said they will delete their accounts given the changed terms.

It is important to note that Instagram has already released a statement – earlier today – indicating that the company does not intend to sell user’s images to third parties, and that the new terms and conditions will be amended to clear up the current confusion.

Even if Instagram did not retract that possibility, it is worth identifying what users are particularly worried about and whether privacy is the main concern.

Instagram and Facebook

A good place to start is with Instagram’s owner, Facebook, which also collects images and information about users. Facebook also has terms and conditions similar to the proposed Instagram terms, that state:

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.

We do not give your content or information to advertisers without your consent …

Those terms indicate that Facebook can use information about users, including profile images, in connection with commercial content subject to privacy settings. But this does not extend to a user’s photo libraries or galleries, only his or her profile picture. Why might this be?

exoskeletoncabaret

There are differences in how images are dealt with by Facebook and Instagram. On Facebook, the terms stipulate that users must have “real name” profiles. Users are tagged in images, connecting those images to users and their associated information.

Revenue can be earned through the capacity to identify users as advertising targets based on the individuals they are connected to, what they “like,” and other metrics provided on their profiles.

Instagram does not require real names for profiles, nor are users tagged. Instead, Instagram has a profound repository of images uploaded and categorised by users through hashtags.

Instagram’s new terms and conditions have alerted users to the possibility that their baby photos, holiday snaps or any other image could be used by advertisers who would pay Instagram, but not the user or model.

In the most extreme imagination, Instagram would possess a catalogue of images that could be sold or licensed similar to stock image libraries such as Getty. Although company representatives have said they do not intend to do this, the proposed terms permit them to do so.

Publicity rights

Is this really a privacy issue? Instagram users are generally content for the broader Instagram community to have access to their images – unless they have a private profile (which the new terms and conditions would not undermine).

Many users have decided to leave Instagram following the latest development. coutinhobr

The unauthorised disclosure or circulation of images is certainly something dealt with by privacy law, but the terms and conditions stipulate that the user provides such authority. So that should normally mean that the distributions are permitted – and the question, still, is whether privacy is the issue here at all.

The main concern seems to be a quasi-commercial one, the interests here akin to the “publicity rights” that are recognised in the US, which provide persons with a right to commercial exploitation of their personality.

Australian law generally does not recognise publicity rights.

On the other hand, photographs may well be covered by copyright protection. Indeed, the Instagram terms and conditions seem to be framed as a copyright licensing agreement, where the user retains ownership of images but gives a very liberal licence to Instagram to commercially exploit those images in exchange for free access to the Instagram service.

Perhaps it’s time to start thinking about whether it should be up to individuals to look out for themselves when it comes to information privacy, or whether our regulators need more power.

Join the conversation

25 Comments sorted by

  1. Dionne Lew

    logged in via Twitter

    Jake a nice article. My concern with giving regulators more power is that there's not a high level of digital literacy yet within these bodies and I worry they might make reactive decisions because they are trying to play catch up with respect to tech. I wonder if we will start to see a shift away from freemium models because users like me want more control over the terms and conditions? What's your view.

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    1. Jake Goldenfein

      PhD Candidate, Centre for Media and Communications Law at University of Melbourne

      In reply to Dionne Lew

      Hi Dionne, good point. My comment here references the fact that the relevant legal regime may be data protection. In Europe regulators have stipulated that if overseas companies target EU consumers they will have to abide EU data protection regulations. In Australia, our Privacy Commissioners have suggested they do not have jurisdiction to deal with companies outside of Australia, even if they are collecting Australian's data.

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  2. Edwin Flynn

    I am a early retired executive at Worked in Local Government, Education and Financial Services Industries

    It has not ceased to amaze me how since the onset of the internet to the general population some 20+ years ago, people have lost touch with the concept of their own privacy. The public has let itself fall head first into the glory of being heard by the masses. Their stories can be read by millions and people in far off place will get to know of them. No one considered who might be watching, who may be listening. In our real lives we are constantly aware of our surroundings. We whisper our secrets…

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    1. Edwin Flynn

      I am a early retired executive at Worked in Local Government, Education and Financial Services Industries

      In reply to Edwin Flynn

      The 3rd last paragraph has the word 'buy' instead of 'by' and should read as follows. Sorry sometimes my left hand and my right hand just move too fast for even me. (:-))

      "What we do in society is to reduce the opportunity to steal BY reducing the temptation by check and balances and by punishment if we discover theft."

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  3. Thomas Pickard

    Photographer

    The author states:

    "Instagram’s new terms and conditions have alerted users to the possibility that their baby photos, holiday snaps or any other image could be used by advertisers who would pay Instagram, but not the user or model."

    As a photographer who licenses imagery for a living, there is one problem with this statement. Generally speaking, any photo containing a recognisable human face must have a signed model release if it is to be used for commercial purposes.

    The author also states…

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    1. Jake Goldenfein

      PhD Candidate, Centre for Media and Communications Law at University of Melbourne

      In reply to Thomas Pickard

      Hi Thomas, the license given to Instagram by users is very broad. The terms and conditions include representations that user has the right to grant that license, and that posting those images does not violate rights of any third person.

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    2. Matt de Neef

      Editor at The Conversation

      In reply to Thomas Pickard

      Hi Thomas, the photos are all from Flickr and they're published there under a creative commons license. We've credited them as is appropriate for that license.

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  4. Peter Miller

    Digital Artist/Sound Designer/Composer at Scribbletronics

    The extraordinary part of this affair is the completely disingenuous apology issued by Kevin Systrom, one of Instagram's co-founders.

    http://blog.instagram.com/post/38252135408/thank-you-and-were-listening

    Does anyone seriously believe that a company worth more than a billion dollars would have *accidentally* worded their ToS badly? In his 'explanation' of what happened, Systrom says:

    "Legal documents are easy to misinterpret."

    To which the only response can be: how much are you paying your lawyers? Legal documents *shouldn't* be easy to misinterpret. That's the whole point of legal documents.

    The whole thing is much easier to understand if you read the apology while keeping in your mind the image of a kid with his hand in the cookie jar.

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  5. Thomas Pickard

    Photographer

    Jake:

    You need to be much more specific. Your reply is very broad brush and as such, has little context to the original article.

    Instagram's Terms of Use as at the 20/12/12 state:

    "Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through…

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  6. Dionne Lew

    logged in via Twitter

    Okay thanks Jake for that addition. Where can I find more information on what the regulators in Australia are currently considering - ACCC - ASIC - Privacy Commissioners etc? or do I need to go to each individual regulator.Or s there some global database that gives a comparison of these sort of issues? Appreciate good pointers to credible information. Thanks.

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  7. Stephen Wilson

    Lockstep

    That mea culpa was straight out of the Zuckerberg copybook. Instagram say they were misunderstood! They say they don't want to sell photos to ad men!! They say members will always own their photos!!! But ownership is a red herring and the whole exercise is likely a stalking horse.
    Facebook paid $1 billion for Instagram to get a mother lode of photo data. Image analysis and facial recognition give them x-ray vision into their members' daily lives. They can work out what people are doing, with whom they're doing it, when and where.
    Photo ownership is a red herring. They don't matter nearly as much the metadata and not the usual stuff like geolocation and camera type embedded in the JPEGs. Much more important now is the latent identifiable personal content in images.

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  8. john corker

    Director of the National Pro Bono Resource Centre at UNSW Australia

    I agree that ownership is a red herring. Its about the terms of the license that account holders give to Instagram to use their images that really matters. I don't think that giving regulators more power is very helpful because these are global corporations operating in 100s of countries and regulators only operate in one jurisdiction at a time. The paradigm shift is that regulation has moved into the commercial space. The real onus for regulation (or seeking to change behavior of owners) now shifts…

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    1. Dionne Lew

      logged in via Twitter

      In reply to john corker

      John interesting, thanks for that. Do you know if there any international bodies who are looking at some of the jurisdictional issues that new media creates?

      And another question, how do users protect themselves when terms of conditions change? Many people using third party platforms but start to build brands and businesses off them. Clearly it's not easy to change once they get established. In Australia is there any protection for consumers from retrospective changes like these, even if the platforms are free and the providers are based in the US?

      While I appreciate that from an individual perspective the power rests with people, businesses use these platforms for very good reasons and will need reassurance that what they sign up to is what they can expect.

      Love your thoughts.

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  9. Chloe Adams

    writer

    This entire affair is confusing. In the end I just did what Pink and Farrow did. Who has time to read through dubious language and back flips? Ultimately Facebook need to make money after paying a hefty price to acquire Instagram. This type of profiteering reminds me of online affiliate marketing, a scam if ever there is ("put this banner on your website and earn a commission" that can be fiddled with by the webmaster of the company you advertise freely on the site).
    I don't believe Systrom's apology. Ultimately Facebook will find a way to exploit Instagram users in the same way it exploits Facebook users (utilising information to target marketing and so on).
    The only people who will stay loyal to Instagram are those whose tendency toward self publicity overrides their logic and economic nous.

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  10. john corker

    Director of the National Pro Bono Resource Centre at UNSW Australia

    Dionne. Businesses, like individuals need to put their content on multiple platforms and vote with their feet if the conditions of use change adversely to their interests and aspirations.

    Media regulators around the world have been talking to each other about these issues since porn first appeared on the Internet and through cooperation, and international MOUs, some schemes have developed to address the worst aspects of highly offensive/illegal content but the current Instagram issues are about commercial exploitation of individual's IP, never really a big concern of regulators.

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    1. Jake Goldenfein

      PhD Candidate, Centre for Media and Communications Law at University of Melbourne

      In reply to john corker

      Hi John, I definitely agree with you that these issue are primarily about intellectual property and licensing. However, in my opinion data protection law may be relevant, whereby the images posted amount to 'personal information'. Breaches of Australia's data protection regime require action from a Privacy Commissioner.

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    2. Stephen Wilson

      Lockstep

      In reply to john corker

      I'm responding to Jake's response to john corker.

      Actually I feel that in practical terms we must not allow this to be "about intellectual property and licensing". One of the worst things about the new Instagram Terms is they're now so much legalese. How many typical users, even if they try to read this document will get past the screaming third paragraph? To wit:

      ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW…

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    3. Dionne Lew

      logged in via Twitter

      In reply to john corker

      I agree in principle John but on a practical level there are no equivalents right now to Facebook as a social network and Twitter as a microblog, so if people voted with their feet, where would they move to? It would be the same if there were issues with LinkedIn because it is the established professional network. Once there are choices, people may be able to vote with their feet but right now these options don't exist.

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    4. Peter Miller

      Digital Artist/Sound Designer/Composer at Scribbletronics

      In reply to john corker

      I think people tend not to understand the vast differences between something like Facebook and old style business models (like a coffee shop, say). What Facebook is offering is not something you can easily walk away from and find a 'better' alternative. It's not like someone serves you rubbish coffee, so you just find a new coffee joint. Facebook's currency is social capital, and that social capital is not something that *they* actually created; they set up the structure for it to be traded, but…

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  11. Guy Cox

    logged in via email @guycox.com

    The bit that I don't understand is why users fall for this. Why go Facebook or Instagram when you can have your own web site for next to nothing? On your own site copyright is yours, there are none of these issues. If you want the extra exposure Facebook can bring, put up a minimal page with a link.

    Guy

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  12. Dionne Lew

    logged in via Twitter

    Responding to Pete (The Conversation - there should be a reply to reply function here :-) so the conversations can be linked) -

    Pete very well put -

    As I was saying to John in my response voting with your feet is difficult when there's no other place to go and with a billion users Facebook is not likely to be impacted by even a million dissenters -

    I like the idea of your app -

    What we really need is more powerful players in the picture -

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    1. Peter Miller

      Digital Artist/Sound Designer/Composer at Scribbletronics

      In reply to Dionne Lew

      Dionne: They used to implement embedded replies but due to problems with vast entangled comment threads they've changed that. Apparently it was response to requests from the 'community' although no-one ever asked me about it :) Those of us who've spent many more years on the internet than most people don't really have a problem with those kinds of things, but it evidently offends the sensibilities of those with less-strong constitutions.

      Back to the topic: I did find an app that does more-or-less precisely the thing I was hypothesizing. It's called 'Socialba' and comes out of China. It works as a plugin for most browsers and seems to have been supported as an official Chrome plugin for a while under the name PublishSync, but has vanished now which is curious. It is still available on the Socialba site.

      I am curious enough to give it a go. It's really quite inriguing that there is no heavy hitter on this - my mind is already jumping to conspiracy theories... :)

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