Instagram’s New Terms of Service- And What You Actually Need To Know
Many of you know, Instagram recently updated their terms of service. Either it made you nervous, or it did not interest you one bit because let’s be honest, long paragraphs of boring legal information isn’t sexy. But seeing as how this is my bread and butter as an IP paralegal, I thought I’d break it down for you in the sexiest way possible.
First, the fun disclaimer: this is not legal advice, just general legal information for creators and consumers in layman’s terms. Consult an attorney for further questions and guidance on how this pertains to your social media platform. I say this because it is important to go to the source, in this case the Terms of Service, and not links that give their rendition of it, as many without legal knowledge may interpret incorrectly.
Now for the fun part. The good stuff. What does it all mean?!
1. There will always be a polarization between privacy and user experience
This is just the name of the game. To enhance the user experience, private information is generally shared. Whether this is your location, phone number, address, or access to your camera and microphone, it is private information you are giving to Instagram to use as a way to make your time on the app more convenient and easy. Now Instagram is not out to spy on you or go through your pictures, but what needs to be decided by you personally is if you feel comfortable with this information being accessible. I always recommend using two-factor authentication and strong passwords for this reason. This is a discussion to have with your business partners, employees, and family on what you feel comfortable sharing on your pages. The threats that should be worried about are hacks from others. Like I say, be a big girl, and secure your business.
2. All changes made by Instagram are going to be for money and to improve use experience.
This mentality above is a great lens to look through when understanding why the rules Instagram has are in place. What is then important is you are aligning your content with this lens also, and not doing the opposite, because as much as they deny it, shadowbanning is real. You have a very real possibility of losing certain functions on your page, having content deleted, or being deplatformed all together. When pages are flagged for spamming or buying their following, it is directly affecting Instagram’s algorithm. While there are real instances of Instagram’s methods for scanning content, generally they are looking for content they find as inappropriate, or not conducive to their vision.
3. Don’t put all your eggs in one basket
You don’t own your Instagram. Plain and simple. When you sign up and accept the terms, you accept to following their rules. They allow you to use their platform. If you find yourself not being able to market or engage with your followers in the way you envision, look for other communication platforms to do this on. I recommend not just using Instagram, Facebook, and other social media platforms, but also an email or text list. Email is a platform that you own. You own your email link, so you can go about it any way you see fit. This allows you to have complete freedom in filtering your content. And when you combine these platforms, you have a great web of communication and marketing.
4. FTC Guidelines- Know ‘em, Live ‘em, Love ‘em.
While there are not any particularly large changes to their agreement, what it targets most is sponsored content. The need for following FTC guidelines is becoming more prevalent as giveaways, sponsorships, and affiliate advertising is on the rise. While this is a great way to gain followers and target specific audiences for content, the rules need to be in place to ensure there is a limit to spam on consumer feeds. The most important guideline is state your intent. You have to make it very clear you are an affiliate or your post is sponsored. If you are getting some kind of reward, you have to let your audience know. It can be as simple as stating it is an ad. Hashtags like #ad, #sponsoredcontent, and #affiliate are easy ways to cover yourself. The last safety net you should give yourself is an accessible terms link. Yes, your followers will not likely be looking for this, but in the event you need to cover yourself, this shows you’re following FTC guidelines.
Another area that is growing in social media giveaways. Everyone loves getting free stuff, but you must be clear in your requirements a few different things. A simple what, when, and how, is a good guideline to follow. What are you giving away? (emphasis on give, as your followers should not be buying the giveaway) When are you rewarding it? And lastly, how to win. The how is specifically important as your consumer consideration is key. For example, generally one has to follow a few accounts and share the post, but do not make it where they have to follow 70 different accounts and share numerous different posts. The intent should not be a lottery. The reward also needs to be generally under the $600 value range to avoid IRS forms. Moral of the story, keep it reasonable, keep it simple. It not only keeps you in the clear legally, but caters better to your followers.
For more info on FTC guidelines, click the link below to access my free course on FTC guidelines for social media
5. How the heck does this apply to IP
IP is very tricky when it comes to these terms as you’re mixing modern law with old and outdated law. While Instagram does not own your content, you do grant them sharing rights when using the platform. The issue you start to see in this is embedding, or 3rd parties stealing rights. Here is an example: Someone takes a great professional picture of the sunset with their fancy Toyota in the back. Toyota sees this picture, and uses it on their site. Now, the photographer is left without credit on the photo, and the Toyota page gets 10,000 likes on the photo. What was supposed to happen was the photographer was reached out to by Toyota, and asked to have rights to share the photo. Tagging is not necessarily permission, and to not give proper recognition and permission to the content creator is where embedding happens, and instagram gets in trouble.But it does happen, so your responsibility is to ensure you are not taking credit for other’s content. Rule of thumb, sharing a post is okay (like in a story, message, or repost feature), screenshotting is not.
A question was brought up also on if this pertains to paying clients or customers for sharing your posts or advertising for you; short answer- this is for you to decide. The terms of service with instagram does not have anything on specifically paying someone for doing this. They will need to remember to be clear they are an affiliate, but your choice of reimbursement does not matter. Whether this is a simple thank you, cash, or sending them a free product or discount, is completely up to the content owner themselves. The focus should be on ensuring you protect your content and who you have share it for you. My podcast “Creative Counsel with Brittany Ratelle” gives some great tips on how to protect your content and what to do with a copy cat.
6. The BIG Takeaway !!!
Instagram is here to make it the best experience possible, while also making money. And so are you. Rules are there not to just protect them, but ultimately protect content creators and consumers. The “help me, help you” policy is a great way to approach this. Help Instagram by protecting their algorithm, and they will help you grow your business and engage with your customers.
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*This blog post is not intended as legal advice. No attorney-client relationship. For informational purposes only.