What the Media Can Learn from Instagram’s Contract

January 16, 2013 • Digital News • by

A new contract between Instagram and its users will take effect Saturday (Jan. 19), and the far from smooth transition in shifting contracts has taken the photo sharing service to the courthouse. As lawyers, concerned users and service providers argue about the new contract, the case raises more interesting questions about the social responsibilities of news media. Instagram’s announcement of its new terms of service (TOS) on December 17th overshadowed the promised end of the world, as tens of thousands of outraged users took to social media to express their discontent. Many threatened to leave Instagram. Others, including the National Geographic, which used Instagram to post professional photos, discontinued use of the service immediately until Kevin Systrom, Chief Executive of Instagram, apologized for the confusing language and promised a more clearly-worded version.

The part that triggered discontent from users read, “to help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.“ In addition, Instagram included a clause that allowed the service to include commercial content without clarifying it is such. Some users reacted immediately. The National Geographic, which makes professional photos from the magazine available to its more than 700 thousand followers on Instagram, placed a text on their official Instagram feed, stating it would suspend the account due to concerns over the new contract. After this message appeared on the National Geographic account, word-of-mouth reached a number of users that turned out to be almost disastrous for Instagram. The service went into damage control mode. Kevin Systrom claimed Instagram had no intention of selling user data and that all the confusion came from the poor wording of the contract. He said Instagram had heard the message and will improve the contract. This stopped many from closing their accounts and National Geographic resumed its postings on the network. The contract was indeed improved partially, though some issues still remain. Finkelstein and Krinsk lawfirm sued Instagram after the change, claiming that users who disagree with the new terms can close their accounts, but thus forfeit their rights to previously published photos, Reuters reports.

It is hard to imagine Instagram could not afford a lawyer with excellent language skills, especially given that the “confusing language” was in no way confusing enough to disadvantage the social network itself. But Instagram just happens to be the only social network to have bitten on the hard rock of publicity. FastCompany compared four social networking websites’ terms of service (Twitter, Flickr, Instagram, and Facebook) and most of them have similar terms. According to the research, while users keep the rights to their photos, Flickr is the only network that does not include a clause about changing the purpose of posted content. While for most businesses it makes sense to use social channels to communicate directly with consumers, the benefits for news media remain dubious. One of the arguments in favor is that sharing some material on social networks attracts more readers and thus advertisers. But the frenzy over Instagram has shown that traditional media outlets have to be careful about exactly what they are signing up for.

Opening a social networking account will automatically impose a contract on the account holder – a contract that usually gives the management of the social medium an exclusive right to change the contract without discussing it with the other party. This already puts traditional media in a disadvantaged and somewhat dependent position under a “take it or leave it” contract. And, as the Instagram case proved once again, the wording of the contract matters. It is highly unlikely that a company would want to pay a newspaper for advertising on its website, when social networking websites can advertise on that same outlet’s social account or even use its content for a highly targeted advertising campaign without the consent of the outlet’s management. It is true that media outlets are dependent on social media to attract more readers and build a stronger brand name, but they should neither forget their role nor let social media forget that news-sharing adds value to their websites. The National Geographic is far not a news media, but it brought the dubious terms of service to the public attention and showed an example of how print media can and should use their brands to fight for their power to bargain with social media.

Last year’s dispute between Google and the National Association of Brazilian Newspapers (ANJ) showed that sometimes even the collective voice of traditional media cannot force a social giant to change its behavior. After coming to no agreement on whether or not Google should pay them for using their headlines and meta-tags in the Google News search, ANJ members, representing 90 percent of the country’s news circulation, decided to ban Google from using their content. Unlike Instagram, Google is still standing firm on its decision not to pay for the content even if it means not listing news posted by the main Brazilian newspapers. Unfortunately for the ANJ, Google’s choice of media outlets is too large to be affected by such a decision. The difference between the ANJ and the National Geographic’s attempts to boycott a social network is that the ANJ sought to protect their profit by disabling Google from providing the content for free, while National Geographic halted Instagram’s effort to make profit from free user content. Even though National Geographic’s voice was the loudest and the strongest in the Instagram case, it wouldn’t have had the same effect if there hadn’t been a tsunami of public opinion supporting it. So it seems that the best way to win the public’s trust is to stand by the people and protect their rights.

Photo credits: Philip Di Salvo / EJO

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