Instagram Claims Right to Sell Photos

Early in 2012, Facebook approached the founders of Instagram with a $1 billion deal to buy the fledgling Internet photo company.  In September 2012, the deal was finalized for reportedly $750 million.  Good news for Instagram, but bad news for anyone who posted one or more of the 5 billion photos.  Why?  Because now, with Facebook owning Instagram they have the right to sell any of these photos.

The policy to sell user photos was supposed to take effect on January 16, 2013, which was 3 months after Facebook’s purchase.  According to this new policy, Facebook is claiming their right to sell Instagram photos without notifying or paying the original poster.  The only way to avoid this happening to you is if you deleted your Instagram account before the January 16^th deadline.  News of this caused an uproar among users.   

But how will this new Instagram policy affect users’ privacy?  If you have an account that hasn’t been deleted prior to the January 16, 2013 deadline, any of your photos could be sold to advertisers.  In other words, that picture of you in your bikini while you were on Spring break, holding up a bottle of Coors Light, could be sold to Coors and used in one of their advertisements.  Imagine your surprise when you see this picture on a billboard!  Instagram will be making money for Facebook from Coors, Coors will be making money from the advertisement and you will be making nothing at all for your part in all of this.

Kurt Opsahl, Senior Staff Attorney with the Electronic Frontier Foundation says of this new policy, “It’s asking people to agree to unspecified future commercial use of their photos.  That makes it challenging for someone to give informed consent to that deal.”

Because there is nothing specified, this leaves an endless list of possibilities for exploitation of user photos.  Travel agencies, airlines and resorts can all use your photos in magazine ads, brochures, Internet advertising, television advertising, etc.  All they have to do is pay the fee to Facebook and your Instagram photo is now theirs to use as they see fit.  There is no limit to what types of photos will be sold.  This means that if you post a picture of your children playing in the sands of a tropical island, your children could be the subject of an advertisement.  

If you don’t like what you’re reading and you decide to delete your Instagram account at this time, you are too late.  The policy does not include any language that says that photos uploaded after January 16^th are exempt from Facebook’s right to sell Instagram photos.  So, you can delete your account today, but any photos you already uploaded to Instagram can be sold and used by the buyer. 

There are two new additions to Facebook’s Terms of Service that pertain to Instagram and other photos.  The first addition to the TOS, states that Facebook has “transferable” and “sub-licensable” rights, which allows the licensing by Facebook, of your photos, to any company or organization.  The second addition states that “a business or other entity may pay us to display your photos in connection with paid or sponsored content or promotions, without any compensation to you.”  This is yet another reason why you should carefully read and understand all Terms of Service and Privacy Policies, including any and all updates.

Another thing you should be made aware of is that Facebook’s new Instagram policy will make it immune to any liability.  In other words, you cannot sue Instagram if your private photos become public.  The language for this reads, “Instagram will not be liable for any use or disclosure of any content you provide.”  Further, it states, “You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.”

It’s possible that Facebook will never sell these Instagram photos.  The new policy language could just be a way to protect itself in case any of these photos happen to end up in advertisements, but I wouldn’t count on that.  This seems to be yet another example of how Facebook is trying to make money off of their users since going public in October 2012.  Earlier, it was announced that Facebook would be selling “sponsored stories” from user “Likes” and posts in addition to using photos in ads; all without compensating the original posters.  Recently, the “Promote and Share” feature was launched, which allows users to promote and share posts made by friends for a fee of $7 (Promote and Share: Facebook’s Latest Money-Maker).

When asked about the new policy, Facebook and Instagram have remained silent.  Mr. Opsahl of the EFF states, “Hopefully, at some point, we’ll get greater clarity from Facebook and Instagram.”  We shall see.

Should you stop using Instagram?  That’s entirely up to you.  Do you want to take the chance that you, your children or other family members may one day pop up in a national magazine ad?  I sure don’t, because I value my privacy.  But, if you don’t mind this possibility, I would suggest that you be careful of the content of the photos that you upload.  You need to really think about how others may be seeing them.  Remember, an innocent photo may not be so “innocent” in someone else’s mind.  

Now, please take a few moments to download the free Privacy Guide located at the top of this page.  In it, you will find many tips and suggestions on how to keep your privacy safe both on line and off.