By: Darden Copeland

When you tap “post” on Instagram, you are “capturing and sharing the worlds moments,”[1] as their slogan cleverly states, but with whom are you sharing these moments? It may seem like you’re merely sharing your photographs that you snapped while on vacation, for example, with those on your friends list, also known as your “followers,” but it doesn’t stop there.  With over one billion users worldwide, Instagram is one of the most popular forms of social media; is this massive pool of users the extent of who can see what you’ve posted?  Unfortunately, no.  Several seemingly innocuous provisions of Instagram’s Terms of Use allow your photographs to be shared with virtually anyone in the world.[2]

The governing document for using Instagram is its Terms of Use.  As somewhat of a “gatekeeper,” the Terms of Use must be accepted in order to use the app, so Instagram’s one billion daily users have already assented to its terms.  Unsurprisingly, 97% of Instagram’s target market was found to click “agree” to terms of use agreements before reading a single word[3]—so what you’re about to read may (and probably will) be news to you.

Though its terms provide that Instagram does not claim ownership of your posted photos, it claims the next best thing.  By posting on Instagram, you, “grant to Instagram a non-exclusive, fully paid and royalty-free, transferrable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.”[4]  That’s one hefty license.  In essence, with the tap of your thumb, you give Instagram the right to use, disseminate, and even modify any of your posted photos for free and for any reason.[5] Does this mean that you could be strolling along Times Square and see a large, blown-up picture of yourself that you once posted as a neat portrait for your followers to see—but this time with a massive mustache for the people of New York City to see?  Yep, it does. Scary, right?

Another section of Instagram’s terms poses a less concerning, yet potentially more damaging concern.  What happens if you were to post something such as a pretty mountain scene that you found somewhere on the internet?  Seems like an innocent—at most disingenuous—way of gaining the likes of your followers, but this move could cost you way more than just a frowning follower or two.  Instagram’s Terms of Use provide that when you post something, you certify that it is in fact yours, so that when you grant them their exceedingly broad license, they can use what you post without worry of infringing on someone else’s intellectual property rights.[6]  The terms further provide that, “you agree to pay for all royalties, fees, and any other monies owed by reason of content you post.”[7]  This means if you were to do something as seemingly innocent as save a pretty photo that’s not your own and post it for your followers to see, you could face a myriad of debts and financial repercussions from, once again, tapping your thumb on that post button.

While all of this does sound bleak, there is a silver lining for Instagram users. The scary prospect of photos meant for several hundred finding their way before the eyes of literally everyone in the world is probably an unlikely scenario.  Instagram is not likely to exploit its license that you granted it by blissfully clicking “accept” because it would deal a damaging blow to its reputation, and among other things it would cultivate a sense of weariness amid the social media platform’s users.[8]

This of course doesn’t mean Instagram can’t share your posts, though, so in order to post with utmost caution, Instagram users should make their profiles “private.”  Instagram notes in its Terms of Use that all of its licensure language is subject to the user’s own Privacy Policy, meaning that publicly shared photos will only come from profiles that are set to public.[9]  But, the categorization of public and private profiles is merely a construct within the Instagram platform itself, so at any moment that dichotomy could dissolve, dumping all one billion users into the public pool of possible worldwide sharing.  Next time you want to “share the world’s moments,”[10] remember that you might just be sharing them with the whole world.

[1]See Instagram Logo and Tagline, Logo and Taglines, (https://www.logotaglines.com/instagram-logo-tagline/).

[2]See Nerushka Bowen, Who Owns Your Instagram Content, Social Media Law Bulletin, (Jan. 28, 2015), https://www.socialmedialawbulletin.com/2015/01/who-owns-your-instagram-content/.

[3]See Caroline Cakebread, You’re Not Alone, No One Reads Terms of Service Agreements, Business Insider, Nov. 15, 2017, https://www.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11(presenting survey results of individuals aged 18-34).

[4]Terms of Use, Instagram, https://help.instagram.com/581066165581870(last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017), https://www.copyrightlaws.com/instagram-content-copyright/.

[5]See Bowen, Who Owns Your Instagram Content, Social Media Law Bulletin, (Jan. 28, 2015).

[6]See Terms of Use, Instagram, (last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017).

[7]Id.

[8]See, e.g. Mike Isaac and Sheera Frenkel, Facebook Security Breach Exposes Accounts of 50 Million Users, The New York Times, (Sept. 28, 2018), https://www.nytimes.com/2018/09/28/technology/facebook-hack-data-breach.html(explaining that Facebook’s data breach hurt the website’s reputation).

[9]See Terms of Use, Instagram, (last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017).

[10]See Instagram Logo and Tagline, Logo and Taglines.

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