OK folks buckle up, we are about to look at what is going on with the whole Instagram Terms of Service (TOS) debacle. Earlier this week I wrote a post about why the hashtag #boycottinstagram was trending on Twitter. They basically put out a new TOS and it pushed the envelope by allowing them to not only use your content, sell it without notifying you, but also they added they can transfer that right and sublicense it as well without you being able to sue them or join a class action suit (Why worry if they aren’t going to do something to upset a large group of users?). Then they came back saying they were sorry it must have been that “many users were confused” in the way it was worded….. That didn’t fly as it was pretty clear what they were giving themselves the right to do. Also them saying you own your content is another distraction. Your ownership was never the question. You own the content, but you are giving them rights to do what they want with it and sell that right to others. Don’t be fooled by assurances that you own your content, that is not the issue.
OK first thing to understand blog posts vs contracts. Saying they have no intention of selling your photos in a blog post is not legally binding compared to an explicit contract stating you give them the right. Intentions change, even that word means nothing. This is a bit of smoke an mirrors that companies have used for a long time. There is an old saying, if it isn’t in the contract, it isn’t in the contract. This means what someone tells you doesn’t matter, what is in the contract you agree to does. So don’t think your rights are protected when you give them up and then they massage you into feeling better about it because they tell you in a blog post they don’t have intentions to sell your information. IF they didn’t have intentions, then why are they trying to give themselves that right. Easy, remove “transferable and licensable” then.
This takes us to the second issue the fake fix. The second post they released, said we heard your issue with the advertising section. The advertising wasn’t the issue, the real issue is in the two words added in the “Rights” section which not only gives them rights to use your content as they see fit, but they added that their right is “transferable and sublicensable” This means they can sell that right to anyone else not in their company. Why focus on a section of the terms that isn’t the real issue? The technique is called a red herring technique. If they restate the problem as something smaller that isn’t the main problem then it distracts people from the real issue. First they said users were just confused by the wording, then they say they will revert to the old wording of a small section of the Terms of Service that doesn’t address the changes under the “Rights” section. A person has to ask themselves if they doing this on accident or on purpose. Is this incompetence or strategy? I will let you be the judge.
Third, misinformation. I saw an article in Forbes titled, “After Backlash, Instagram changes back to the Original Terms of Service”. Here is the major problem, they changed one section back to the original terms of service and they changed a section that didn’t really matter. This title is misleading because people will see the title and think they went back to the old TOS. The article does explain they only changed the advertising section, but many people think this fixed all the problems which it didn’t. So people who didn’t read the TOS but were thinking of cancelling because they hear that Instagram is grabbing rights to their content, now think OK they fixed it so I will stay. Misinformation is out there about this issue with many getting their information from Instagrams blog instead of actually looking at the changes in the contract. I guess that is the difference between a blogger and a journalist. You can’t take what Instagram is saying as fact without reading the updates to see what they are really changing. This is what started the whole issue in the first place, people not reading the TOS. This whole thing started because someone actually read what Instagram was trying to pull and called them on it. So please people, stop posting that the problem is all fixed because it isn’t. The TOS are still changed.
Final thoughts: In Frank Strong’s post on Terms of Service Now way to Build a Brand, points out the obvious, a company that would try and give themselves rights to sell your content without your consent and remove your right to sue them in the fine print of their terms of service may not be a company you want to use even if they say sorry. Facebook has constantly been in trouble over privacy issues and making decisions against what its users want. The day has come when people will stand up and vote with their mouse. Why is it that many popular platforms Terms of Service are full of giving themselves rights and protecting themselves from users abusing their rights and at the same time they diminish your rights and want you to give up your rights to sue them? It’s like if they keep telling you that you have less or no rights to your own content, then maybe you will believe them and stop expecting to own rights to your own content and basic privacy. These companies want to tell you that since you put things as “public” anything goes. They could make their network feeds not public and searchable but if they can put your information in a public setting they can then use it and hide behind the fact that you posted it publicly. Many of these platforms are profile and data farms.
The platforms are built for the next generation of industry giants “The Information Czars”. Don’t be so quick to give up your rights, you may find that when you let them go too far, that you don’t like the outcome. This reminds me of the backroom deals in politics. Tech giants are doing whatever they want with no oversight and this is fueled by users who are too lazy to stop them. We can start by shedding the light on things like grabbing rights in Terms of Service agreements or updates. Sorry Instagram, I’ll be deleting my account even if you try to fix it because I don’t like the way you added this when it is not necessary, and also I don’t like how your responded when people called you on it by skirting the issue. Please share this post so people can make up their own mind. Don’t listen to me, read the “rights” section of the TOS. My hope is that this won’t go away because people get caught up in Christmas and New Years. Distraction, laziness, and misinformation call all lead to things getting passed that shouldn’t. Just look at politics, they count on these three.