Cohen & Gresser LLP
DECEMBER 2012

Instagram Retreats on Privacy Policy Change but Gets Sued Anyway  

Karen H Bromberg, Partner  

Photo-sharing app Instagram announced last Thursday, December 20, 2012 that it will withdraw one of its recent changes to the site's privacy policy following a public backlash. The withdrawn language explicitly permitted third party advertisers to pay Instagram to display a user's name, images, preferences and photos for advertising purposes (along with any associated metadata) without compensation to the users. 

 

However, Instagram's now-withdrawn policy is only one of a number of changes that the company made to its Terms of Use. Among other things, Instagram attempted to take preventative steps to avoid class action lawsuits by requiring users with a legal complaint to submit to arbitration for most claims, and prohibit them from joining a class action lawsuit in most circumstances. Other proposed changes included a liability cap of $100 for damages of any kind and a one year statute  of limitations within which to bring claims against Instagram. 

 

Not everyone overlooked the significance of these provisions. On Friday, December 21, a San Diego law firm commenced a purported class action litigation in California challenging Instagram's class action waiver and liability cap.  Whether Instagram's new Terms of Use are sustainable will be of interest to other companies similarly seeking to limit their exposure.

  
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About the Author
Ms. Bromberg is the head of the Firm's Intellectual Property and Licensing Group. She handles all aspects of intellectual property and technology law, including license agreements, technology transfer and vendor agreements, joint development and co-branding agreements, and management of IP litigation (including patent, trademark, copyright, and trade secret litigation). She was named as a New York Super Lawyer for Intellectual Property in 2010, 2011, and 2012.
  
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