Instagram backpedals as celebs take their concerns public (Update: Instagram responds with new terms)


posted Friday, December 21, 2012 at 12:35 AM EST

On Tuesday, we reported that popular photo sharing service Instagram was preparing a controversial update to its terms of use and privacy policies that -- among other changes -- would grant it sweeping rights to user-generated content. Just a day after the new policies were announced, Instagram faced a huge backlash from its user community, leading co-founder Kevin Systrom to attempt to defuse the situation with a statement on the official company blog.

In the blog post, Systrom clearly states that it is not Instagram's intention to sell users' photos, although he doesn't address concerns about language giving Instagram rights to sublicense the content to an entity other than itself. Nor does he provide answers to concerns about the lack of clarity over whether Instagram and its affiliates' right to content expires on deletion of that content, or for that matter on cancellation of an account. Parent company Facebook has an almost identical right to sublicense and transfer its rights to user content, but it does make reasonably clear that if the user chooses to delete their content or account, the site's rights to the content will expire. (Although a term in Facebook's own contract does seem to clash with this somewhat, suggesting that content may remain on its site even after being deleted by its owner if it has been shared by other site users.)

These and other questions must be addressed, if Instagram wants to fully restore its users' badly shaken confidence. It is at least promising that Instagram was quick to react with a public statement, and hopefully an updated policy addressing the major questions users had over the first draft will be available in not too long.

Update: While we were finishing this article, Instagram's Systrom wrote another blog post announcing that the company had revisited the new terms of use.

The good news? The article relating to advertising has been reverted to its original form, dating back to October 2010, and Instagram has pledged to develop a concrete plan for its advertising business before updating the terms of service to enable it to operate. The suggestion that a minor can imply consent of their legal guardian simply by using a website has also been removed, since it related to the advertising clause.

Some users will still have concerns, however. A key point about transferable, sub-licensable rights to images hasn't so far been addressed, and numerous other changes -- some of which users may not be thrilled by -- also remain in the updated terms. To whit:

  • Instagram's new TOU still gives it transferable, sub-licensable rights to use your content. Systrom has been clear in stating that "Instagram has no intention of selling your photos", but does not state whether it will be charging other entities to license them, nor why it feels the need to add the words "transferable, sub-licensable" and drop the word "limited" from its description of the license users are granting to the service. If Instagram wishes to be completely transparent, it should explain to its users just why a transferable, sub-licensable, non-limited license is now needed when this was not previously the case.

  • The updated terms still suggest that Instagram can now run paid advertisements masquerading as site content, thanks to a provision stating that users must "acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such." The terms also still allow Instagram to share information with third-party sites through external links -- presumably referring to the site's application programming interface (API) -- while disclaiming Instagram from all liability relating to the manner in which third parties make use of that information.

  • The new terms also retain the provision that bars users from taking their grievances with the site to a court, either individually or as part of a class action. Instead, they provide only for arbitration proceedings as stipulated by Instagram, or for users to take their cases to small claims court.

  • The new terms still allow Instagram to make material changes to their policies as it deems necessary without contacting users to notify them, as well. (Simply updating the TOU document on its site is deemed sufficient, and users who continue to access the service after a change will be considered to have accepted the new terms even if they've not seen the updated document.

After the first update to the terms of service, many celebrities and other prominent users who probably have the most to fear from having their images sublicensed or attached to advertising were quick to air their concerns, and in some cases, to run for the exits. More than a few have been quite public in announcing their intentions, not the kind of publicity Facebook will want for its billion-dollar purchase. It remains to be seen whether regressing the advertising-related changes will be sufficient to appease users, or whether significant issues will remain.

National Geographic's most recent Instagram posting leaves no doubt as to its concern over the service's new policies.

Socialite and reality TV star Kim Kardashian, who has close to 17 million followers on Twitter and almost six million on Instagram is probably the highest-profile celeb to publicly question the updated terms as first posted, tweeting that "I need to review this new policy. I don't think its fair." Her sister, Khloé Kardashian Odom, concurred, with her Twitter followers reading that the The X Factor co-host "might be deleting my instagram after Jan 16. I hope something changes". Half-sister and teen model Kendall Jenner likewise tweeted her concern.

A tweet from singer-songwriter Adam Young, the man behind Owl City -- "Goodbye Instagram." -- cut to the point and made his feelings quite clear. Similarly blunt was Canadian DJ Joel Thomas Zimmerman, better known as Deadmau5, whose tweet -- "Here you go Instagram, feel free to sell this posted photo for cash. Thanks for selling me out" -- linked to a picture of an obscene gesture on the photo sharing site. (A follow-up tweet shortly afterwards noted that Zimmerman felt it was "more of facebooks issue than instagram really...")

And feelings of concern and anger weren't limited just to celebrities. CNN anchor and veteran journalist Anderson Cooper told almost 3.5 million Twitter followers that "I may rethink using Instagram", while the official National Geographic feed on Instagram posted a picture stating that "@NatGeo is suspending new posts to Instagram. We are very concerned with the direction of the proposed new terms of service and if they remain as presented we may close our account". 

Lest Instagram believes such threats to be idle, it would do well to pay attention to such high-profile examples as Alecia Moore, better known by her stage name P!nk. The popular singer-songwriter has over 12 million Twitter followers, and left them in absolutely no doubt as to her opinion, tweeting "I WILL BE QUITTING INSTAGRAM TODAY. WHAT A BUMMER." It was no bluff, as her million-plus Instagram followers will have noticed: the account has indeed been closed. Other big-name account closures include American Idol-winning singer Jordin Sparks and actress Mia Farrow.

Now that the updated terms have arrived, users who were playing the waiting game can finally make up their minds as to whether the concessions made by Instagram are enough, or whether they'll need to move on. The new terms come into effect from January 19th of next year, and should you find them too bitter a pill to swallow, you have only one way to avoid accepting them: cancel your account.

Are you content with the updated policy and its remaining updated terms, or will you be canceling your account? Share your thoughts in the comments below.

(some details via Us Magazine, Daily Mail, SugarScape, the Mirror, Orange News, and Peter Burian)