Did Instagram really update their TOS like they said they would?

Jan 22, 2013

Topic: General Legal, Social Media
Time Investment: 5 Minutes
Suggested Product:  BizRevamp®


Several weeks ago, Instagram ignited a firestorm of controversy with announced changes to its privacy policy and terms of use. After unprecedented publicity and after enduring quite a bit of outrage from its users, Instagram announced that they would be changing their terms of service and privacy policy.  See the initial blog post here.

So what changes were actually made? Let’s take a look at what the new terms of service mean, and how they will affect you.  As a business owner you should always be aware of the marketing outlets you are using and how they impact your business.

As mentioned in our prior blog post, by using Instagram you are entering into a contract with the company. Those who do not wish to be bound by the terms of service really have no choice to avoid the terms if they use the service. Thus, as a condition of using Instagram, you grant your consent to whatever terms Instagram creates for you.


Updated Terms of Service

The updated terms of service still require you to grant a license to Instagram:

“Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.”

The most significant change in the updated terms of service is that the license that you grant to Instagram is subject to the terms of the privacy policy. Thus, the terms of service must be construed in conjunction with the privacy policy.

The privacy policy makes it quite clear from the outside that terms of the policy are not negotiable and that by using the service, you are understanding and agreeing that Instagram will collect information about you and that you will be sharing that information publicly.

“By using our Service you understand and agree that we are providing a platform for you to post content, including photos, comments and other materials (“User Content”), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service, consistent with the terms and conditions of this Privacy Policy and our Terms of Use (which can be found at https://instagram.com/legal/terms).”



Instagram specifically specifies some of the information that they will be collecting from you, and that this information includes, “User Content (e.g., photos, comments, and other materials) that you post to the Service.” (Emphasis added.)  Further, Instagram’s privacy policy specifically outlines how the service will use the information that you provide and who they will share it with.

“We will not rent or sell your information to third parties outside Instagram (or the group of companies of which Instagram is a part) without your consent, except as noted in this Policy.”

While the first part of the above provision seems to convey that no information will be shared without your consent, the last part of the provision provides a very broad exception. That exception states that information that is outlined in the policy can be shared without your consent.

Some of the information that is shared according to the terms of the policy includes:

We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Instagram is part of, or that become part of that group (“Affiliates”). Affiliates may use this information to help, provide, understand, and improve the Service (including by providing analytics) and Affiliates’ own services (including by providing you with better and more relevant experiences). But these Affiliates will honor the choices you make about who can see your photos.

This provision explicitly outlines that Instagram can share your content, including photographs and other items that you post on the site, with businesses that are part of the Instagram group of companies. The last sentence in the provision states that the “affiliates will honor the choices that you make,” presumably this refers to the privacy settings that you select on Instagram. This provision basically makes the privacy settings that you select on Instagram “opt out” provisions, by default it appears as if Instagram will still share your content with Third Party affiliates.

While the changes are much less intrusive than the previous draft terms that were announced, the fact remains that Instagram reserves the right to use your photos and share those photos with third party affiliates for use in advertising.

What you can immediately do is to change your privacy settings to reflect your choice that your “photos are private.” To do this, go to your Instagram account settings and then switch “Photos are private” to the “on” position.

Keep in mind that the previous recommendations that were made regarding posting content to online services such as Instagram remain in effect, despite the changes in the terms of service that were less ominous that the ones previously announced.


Explore more