Instagram scored a victory in California when a federal court judge dismissed a putative class action against the company over changes to its terms of service.
In December 2012, the free Web-based photograph-sharing platform announced that it was changing the terms of service for the first time since the site was launched in October 2010. Three material changes were made: (1) it disclaimed ownership “of” the content that users post on Instagram versus ownership “in” the content; (2) it asserted the right to use posted content under a transferable and sublicensable license; and (3) it added a liability waiver.
The new terms provided that anyone who uses the service after January 19, 2012, one month after notice was posted, will have indicated their consent to the changes. Users who did not agree to the terms must cease using Instagram.
User Lucy Rodriguez sued. She alleged breach of contract and violation of California’s business law.
But she also continued to use the site after the terms changed.
Therefore, California Superior Court Judge Curtis E.A. Karnow tossed the suit on Instagram’s motion.
Instagram’s original terms of service expressly reserved the right to alter the terms “at any time” as long as users were given notice of material changes. Rodriguez was given the opportunity to opt out before the new terms took effect and yet declined to do so, the court said.
“Plaintiff had a full and perfectly reasonable opportunity to read, and did read, the New Terms; she could have declined the revised agreement,” Judge Karnow wrote. “She could have, under the plain language of the New Terms, avoided the New Terms if she stopped using the service, but she continued to use it: Plaintiff alleged that she used Instagram at all relevant times, including after the New Terms went into effect. Thus Plaintiff must have consented to the New Terms.”
Rodriguez’s contention that by filing a lawsuit she rejected the New Terms was unavailing. There is “no basis to conclude that the filing of a complaint is sufficient to reject the New Terms – most especially after Plaintiff continues to use and presumably benefit from the Instagram site,” the court said.
Additionally, the plaintiff failed to establish that she suffered any harm. “The alleged harm arises from Instagram’s asserted ‘imminent plans’ to sublicense Plaintiff’s pictures or other content she posted,” Judge Karnow said. “This is not harm if Plaintiff agreed to the New Terms. And under the allegations of the Complaint, she did.”
Finally, the court discarded Rodriguez’s claims under California state law as Instagram’s actions were not unlawful. “Effective January 19, 2013, use of Instagram constituted acceptance of the New Terms by express provision of the New Terms,” Judge Karnow wrote. “Accordingly, Instagram did not unilaterally grant itself sub-licensing power; rather it required Plaintiff to consent to sub-licensing power, a liability waiver, and other terms, under a new agreement, if she wished to continue using Instagram’s service. She did not have to agree to these terms, but the Complaint makes it clear that she did.”
To read the order in Rodriguez v. Instagram, click here.
Why it matters: The Instagram decision provides a blueprint for companies seeking to change their terms of service via a unilateral amendment clause in a user agreement. In Instagram’s case, the company could even apply the new terms to prior posted content by providing clear notice to users with ample time to opt out before tacitly consenting through continued use.