Social media users are fuming over changes in the popular photo-sharing and social networking website Instagram’s Terms of Service. The most talked-about change appears to give Instagram the right to sell users’ photographs to third parties for use in advertisements: “…You agree that a business or other entity may pay us to display your username, likeness, photos…, and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.” The backlash against that clause has been severe, but it isn’t the only change Instagram made to its TOS. Beginning January 16, 2013, Instagram users will be obligated to arbitrate most disputes they have with the company and to waive rights to participate in a class action lawsuit or class-wide arbitration against Instagram, unless they opt-out of the arbitration clause in writing.
The TOS state: “Arbitration notice: Except if you opt-out and except for certain types of disputes described in the arbitration section below, you agree that disputes between you and Instagram will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.” To opt-out, the TOS state that users must send an opt-out notification to Instagram by regular mail within 30 days of the date that they first become subject to the arbitration provision.
Facebook purchased Instagram in April 2012 for approximately $1 billion in cash and stock, so changes geared towards revenue generation should not come as a surprise to users. However, the alterations to Instagram’s TOS greatly impact users’ rights vis-a-vis the Internet powerhouse. In particular, the waiver of users’ right to pursue claims on a class-wide basis may stifle lawsuits against Instagram because smaller claims may not be worth pursuing on an individual basis. Furthermore, if users do not opt out of the arbitration clause, they expressly waive trial by jury and commit themselves to pursuing most potential claims against Instagram in a private arbitration setting.
In the wake of user backlash against the new TOS, Instagram has stated that it intends to clarify its new policies. It remains to be seen, however, whether a revision to the new TOS will satisfy users, or whether a new photo app will emerge from the dust kicked up by Instagram’s new policies.