The New Instagram Terms Will Try To Sell You Bacon (And Why You Probably Don’t Care)


A short story about the worldwide bacon shortage for only $2! I’m in!

Instagram’s new terms of services are a more plausible reason for the world ending than the Mayan calendar.  Or at least you might think that’s true if you use Instagram and read all the tweets and blog posts talking about how the changed terms could spell the end of the service (Fox News), how they are a virtual suicide note for the platform (Gawker),  or how they are possibly raising concern among users (Hey!! How did that somewhat reasonable headline get posted?  C’mon CBS, get with the program!).

Those of you familiar with the thorough and methodical analysis that most blogs and Twitter users perform on terms of service and privacy statements may be shocked to know that the majority of commentary is blowing the issue out of proportion.  That’s not to say that changes are happening and that you may not like it, but for the majority of social network users here’s the kicker: you’ve been seeing it for months and haven’t realized it.  And, happily for us all, I get to show you how this is true with everyone’s favorite internet breakfast meat.

First, let’s review the key changes to Instagram’s terms of service.  There are two main provisions that the Interwebz point to with fiery hatred and prophesies of doom: using your data for ads and not clearly marking ads.

Here’s the new Rights section 2 in the updated terms of service:

Some or all of the Service may be supported by advertising revenue. 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.

Instagram is giving itself the right to use your content to generate advertising revenue.  For some reason people find this section incredibly offensive.  I find that amusing since the current Instagram terms already grant Instagram these rights.  Since these links probably won’t work after Instagram switches the terms, here’s the current language in sections 1 and 2 of the Proprietary Rights in Content on Instagram.

1. Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

2. Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

While the exact language is different, reading those two sections gives Instagram the same rights as the new terms.  The new terms do a better job at communicating the usage, I think.  And the new terms actually provide more limits on what Instagram can do with your content.

So if you’re concerned about Instagram using your content to make money I have two responses.  First, how did you think they were going to make money?  Second, why weren’t you concerned before?

But that’s just the first big change that has unleashed the fury of the fuzzy filtered.  The second change that is the Worst. Thing. Ever. (today, anyway) is Rights section 3:

You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

“WHAT WHAT WHAT?!?!” you tweet with the righteous fury of the recently caffeinated.  Showing us ads and not telling us they’re ads or how they’re ads, that’s just…icky!

You may be right (but lay off the caps lock, mmkay?) but if you use Facebook (and I’ve heard a few people do) then you’ve probably already been seeing these ads-that-aren’t-clearly-marked-as-ads for a while.  The majority of changes to Instagram’s terms seem to bring them in line with Facebook’s terms, this is just one of them.  That shouldn’t surprise anyone–if you buy something for $1 billion you may make a few changes.  But what may surprise people is that Facebook has been doing this kind of activity for a while.

I first noticed it in October when Facebook started letting users pay $7 to promote their posts.  Being the social media geek I am, and having a few friends who are also social media geeks (you know who you are), I saw some people actually pay to try this out.  I thought it was amusing, but I did not participate.  Then I saw some other posts show up as promoted that struck me as odd–a friend who posted how he wanted these sweet Star Wars cuff links (he actually wanted the Millenium Falcon but those are sold out).  I understand wanting cuff links that can do the Kessel run in less than 12 parsecs, but paying $7 to tell people that?  Seemed odd.

Then the posts hit closer to home.  A few weeks ago my friend Curtis Edmonds and I published on the Kindle platform a short story we’d written called World War B.  It’s an oral history of what happened when the world ran out of bacon.  Oh, it’s fiction.  Didn’t mean to panic you.  It’s only $2 and we’re giving all the proceeds to local food banks and makes a great electronic stocking stuffer and oh, sorry, back to the law stuff.

We posted links telling people about the story since we enjoyed writing it and figured others would enjoy reading it (especially at such a bargain price that–SLAP–sorry, I just hit myself for going back into marketing mode).  A few of our friends shared the link as well.  That was nice of them.  Then a few days later, I saw one of the posts again.  But this time it was “Sponsored.”


This struck me as odd.  Why would a friend pay $7 to promote a link to arguably the funniest short story about a worldwide bacon shortage ever written?  Then I saw another one.  And another.  And it hit me–Facebook is doing what Pinterest did long ago.  Back when Pinterest was first exploding they would modify links to commercial websites so that they would use a Pinterest affiliate account.  At the time I called it brilliant yet creepy (since it wasn’t disclosed).  I think the same thing here, it’s a smart way to make money but also a bit odd in how it’s done and how it’s disclosed.  They are taking posts made by your friends and Sponsoring them.  Perhaps they earn an affiliate fee, or perhaps they have better deals with the seller (they are Facebook, after all).  Either way, they are taking existing content and turning it into an ad–exactly what the terms allow them to do.

Whether this runs afoul of any FTC guidelines about disclosures or advertising also needs to be addressed.  It’s one thing for Facebook and Instagram to give themselves the rights to do so with your content, but their terms won’t help them if they’re breaking the law.  For now the Instagram activities are hypothetical and Facebook Sponsored posts haven’t received too much attention.  But if the programs expand and morph into something new, there may be more scrutiny from authorities.

In the meantime, if you like sending square pictures that look like they were taken in the 1970s but then you add tilt shifting to show it was made in the 2010s, then keep using Instagram.  And if you don’t mind giant social networks providing you free hours of usage in exchange for using some of your data to make some money, then keep using Facebook.  If either is a problem then you can stop.  But know that these changes aren’t brand new and you’ve probably never been hurt by them, so you may want to calm down and see what happens.

Of course, “Users calmly approach new terms of service” won’t get you to click through.


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Filed under Consumer Protection, CopyFUD, Copyright, Facebook, FTC Endorsement Guidelines, Instagram, Laws, Social Content, Social Marketing, Terms and Conditions

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