Ethical Issues and Instagram

Social networking websites (such as Facebook, MySpace, Google+, Twitter, and LinkedIn) have become the established norm for communication and maintaining relationships. While these websites are useful tools for exchanging information, many users are concerned that their personal details are being circulated far more widely than they would like. The growing concerns over privacy breaches have resulted in a number of class action lawsuits. In this blog I address the situation at Instagram.

Instagram is a mobile photo sharing app which allows people to add filters and effects to photos and share them easily on the Internet. Instagram was acquired by Facebook in 2012. Instagram is a free service that allows users to share their photos with friends and family. Of course, one never knows where is the photo goes once it is posted on the Internet.  

On December 17, 2012, Instagram announced several changes to its Terms of Service. The new Terms of Service suggested Instagram would be allowed to use pictures in advertisements without notifying or compensating users, and to disclose user data to Facebook and to advertisers. Instagram also proposed that the parents of minors implicitly consent to the use of their childrens' images for advertising purposes. The new Terms of Service also introduced a mandatory arbitration clause which would force users to waive their rights to file a class action lawsuit in most circumstances. The changes were to take effect on January 16, 2013 and would not apply to pictures uploaded before that date.

Many users expressed outrage. As a result, a few days later, Instagram again revised the Terms of Service announcing that it would withdraw some of the proposed changes. Instagram backed off a plan to use the names, images, and photos of users for advertising purposes by deleting language about displaying photos without compensation. However, Instagram kept language that gave it the ability to place ads in conjunction with user content, saying "we may not always identify paid services, sponsored content, or commercial communications as such.” It also kept the mandatory arbitration clause.

Instagram's new terms include a clause asserting that users under the age of 18 imply by their agreement that a parent or legal guardian has also read and agreed to the terms. The word “imply” is key. These days if any organization expects users under the age of 18 to follow through a guideline with ethical action…well, that organization has had its head in the sand the past few years.

The new terms require users with a legal complaint to submit to arbitration rather than sue Instagram in court, and it prohibits them from joining a class-action lawsuit under most circumstances. That didn’t go very far.

A class action lawsuit was filed in the U.S. District Court for the Northern District of California on December 21, 2012 which accused Instagram of violating the property rights of its users and breaching its existing terms of service. The class action lawsuit seeks to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory and equitable relief before such claims are forever barred by adoption of Instagram’s New Terms. The lawsuit takes particular issue with Instagram’s ownership of user images, especially in the situation where a user quits the service and, according to Instagram’s Terms of Service, loses ownership of their photos to the company.

On February 13, 2013, Instagram asked the federal court to dismiss the class action lawsuit filed over changes to Instagram’s Terms of Service. Instagram argued that the plaintiff, Lucy Funes, had no right to bring her claim because she could have deleted her Instagram account before the changes in the Terms of Service went into effect on January 19, 2013. According to Instagram's filing, Ms. Funes filed the lawsuit on December 21, nearly a month before the changes in the Terms of Service went into effect and she continued to use her account after that day. Instagram also disputed Funes' claims that the new terms required her to transfer rights in her photos to the company. Furthermore, Instagram took the position that both the old service terms and the new terms "emphasize that the individual owns the content he/she posts through Instagram's service."

Numerous ethical questions arise in a case like Instagram. Here is one as food for thought:

Do social networkers have a right to privacy? More and more users of Facebook and MySpace are finding that prospective employers are perusing their sites, despite the fact that they may conceive of their online presence as personal space. Also, what is a private person’s right to control the images and information about them available on line? I will address these issues in an upcoming blog.

One final thought. I went to the Instagram website and read its short version of its Community Guidelines. That pretty much told me all I needed to know. When an online photo-sharing service has to tell its members “to keep your clothes on” it implies the site has had such issues before and the users have no idea about the consequences of their actions. A word to the wise: What we do today affects who we are tomorrow.

Blog posted by Steven Mintz, aka Ethics Sage, on March 18, 2013