|September 11, 2013|
Previously published on September 2013
Instagram is a social networking service that allows users to post images and videos, apply digital filters, and share the images on a variety of social networking websites, such as Twitter, Tumblr, Flickr, and Facebook, Instagram’s parent company.
Lawsuit - Rodriguez v. Instagram LLC
On July 16, 2013, an Instagram customer Lucy Rodriguez sued Instagram, purportedly representing a class of other Instagram users, alleging that the new terms retroactively grant Instagram an unlimited license to commercially exploit its members’ content in violation of the implied covenant of good faith and fair dealing and California unfair competition laws, CAL. BUS. & PROF. CODE §§ 17200, et seq. Further, since Instagram purportedly does not purge user photos after an account is deleted, the plaintiff alleges that is impossible to stop Instagram from commercially exploiting user content that was uploaded under the old terms. As a result, plaintiff alleges that even if a user does not agree to the new terms and deletes their account, Instagram saves their content. Thus, it is alleged that users cannot avoid the application of the new terms even if they attempt opt out by deleting their accounts and never accept the new terms.
The suit asks the court to enjoin Instagram from implementing the new terms, prevent Instagram from claiming any rights of ownership over user data and photos, and force Instagram to allow users to control how Instagram or third parties can exploit such photos and data.
What Can Companies Do?
The following are some precautions that companies can take to improve the likelihood that online terms, and changes to them, will be enforceable.
In addition, the following steps can further strengthen a clickwrap agreement:
Layer agreements with notice of the most material and unexpected terms highlighted upfront.
Maintain records of user acceptance.
Allow users to print or, especially for mobile device users, e-mail or otherwise send themselves the terms.
Obtain Consent To Changed Terms. The Instagram lawsuit alleges that the new terms provide no consent mechanism before the terms were enacted and purport to bind users that no longer even use the service and accordingly make unilateral and retroactive changes. If notice of changes is clearly given, particularly when a service is provided for free and not subject to any specific period of time, then the operator can require that accepting the new terms is a condition of continued use. Again, clickwrap acceptance to such changed terms is preferable with respect to certainty of enforceability. Further, companies should lay out in the terms a clear procedure for providing notice to users and how consent will be accomplished. If carefully structured, prospective changes can be accomplished by continued use.