Dec 19, 2012

Social Media Business Users Beware

Have you posted any photos with Instagram lately? How about any of your friends? Well for those that did, congratulations! It seems your photos could soon be seen anywhere and simultaneously making money – for someone else? Say What? Well, Facebook acquired photo powerhouse Instagram just 3 months ago, and with the acquisition came also newly authored Facebook fine print consisting of “a perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes.” Electronic Frontier Foundation Senior Staff Attorney Kurt Opsahl explains, “It’s asking people to agree to unspecified future commercial use of their photos,” admitting, “That makes it challenging for someone to give informed consent to that deal.” So what happens when a hotel purchases a picture from Instagram, taken at their resort, that includes children at play? It is hard to say that Facebook will not be infringing upon any state-related privacy laws. Moreover, “there is no obvious language that says deleting an account terminates Facebook’s rights,” Opsahl said. All of this is made possible (at least for now) by two addendums to its terms of use policy. These are as follows: 1) One section deletes the current phrase "limited license" and inserts "transferable" and "sub-licensable," allowing Facebook to license users' photos to any other organization. 2) Additional language added that did NOT previously exist – “a business or entity may pay us to display your... photos... in connection with paid or sponsored content or promotions, without any compensation to you." One clever pundit Tweeted the policy would serve as, “Instagram’s suicide note.” And if changes or some form of recantation is not offered soon, it may very well be. This circumstance is certainly not unprecedented. Back in 1999 Yahoo used similar language including a, “non-exclusive and fully sub-licensable right” to proceed as it desired with users’ content and photos. Yahoo backed down less than a week later because of widespread consternation and competitors’ positioning at-the-ready to claim that their products/services would remain private. At this point, all we can do is identify the language and its potential application. Surely we cannot predict the behavior of Facebook brass as it pertains to Instagram photo usage. What we can do is make potentially affected customers aware. It is entirely possible that this is just an attorney’s attempt to use broad language to protect the Company over the long term for an isolated incident or two in the future. And perhaps some clarification from the Social Media Mothership is forthcoming. All things considered, Facebook has always seemed to maintain a user-first perspective; so for now, it may be okay to sit back and wait. No, really. Wait just a minute. As the Small Business Authority, we caution that there is a bigger picture here. Such issues, as well as other similar ones, raise questions that are important to ask when dealing with any entity. Questions like, “Who really owns my content?” Disasters of the fine print and boilerplate variety present conceivable pitfalls for any business who choses to use a social media site as a primary web presence, (in lieu of traditional web hosting) where you retain 100 percent content ownership. For example, in 2009, Vitamin Water by Glaceau (a Coca-Cola Company) made the decision to forego a traditional website by directing all www.vitaminwater.com traffic/visitors directly to their Facebook site. The Company returned to a more traditional, hosted web model two years later. While all the reasons for a return to a more traditional site were never fully disclosed by Coca-Cola, we can assume the Facebook-only marketing initiative was as least, in part, flawed. Most decision makers already view Facebook and other social media outlets as a cost-free marketing engine with which to peddle goods and services while getting to know our customers. But, can we really afford such freedom when it comes to our business? UPDATE: As expected, Instagram has made an official announcement that users' photos will not appear in ads, or be sold without consent. Company Co-founder Kevin Systrom explained, "One of the main reasons these documents don’t take effect immediately, but instead 30 days from now, is that we wanted to make sure you had an opportunity to raise any concerns. You’ve done that and are doing that, and that will help us provide the clarity you deserve. "Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed." As we stated earlier, such a recantation was expected but one can look forward to Instagram slowly moving toward finding ways to leverage its greatest commodity, photos, and find ways to cash in on it. Regardless of what, when, or who, our aforementioned lesson still holds true. It is wise to consider all facets of a relationship, business or otherwise, before jumping in - even if a credit card is not required in advance.