Amending Your Terms: 5 Things Instagram Did Well

Published On March 19, 2014 | By Dan Sachs | General
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A California Superior Court judge has dismissed a class action complaint, ruling that Instagram’s December 2012 amendment of its Terms of Use was not in breach of contract or violation of California unfair competition law. The court’s decision illustrates five things Instagram did that can help companies that want to amend and then enforce their terms.filters

  1. Instagram’s original terms reserved the right to make alterations and included a provision explaining how users would receive notice of material changes. Without this provision, opt-out consent to the amendment might not have been possible.
  2. Instagram then gave users notice of the amended terms through the means designated in the original terms.
  3. Instagram gave users ample time (over 4 weeks) to read the amended terms before the changes took effect, and an opportunity to opt out (by not accessing or using Instagram).
  4. Instagram did not rely on the original terms’ unilateral change provision to amend terms regarding licensing of photos. Instead, Instagram obtained users’ consent. The court noted that without the new consent, California law would require an inquiry into whether the new terms could have been anticipated by users when they accepted the original terms.
  5. Instagram’s original terms expressly claimed the right to terminate the service for any reason without notice. The court found that a reasonable user could not have expected perpetual use of Instagram’s services under the original terms, and Instagram would not be obligated to continue supporting a version of its service under those terms.

While the court’s decision turns on application of existing precedent, it should provide a measure of comfort to companies that have made similar amendments and guidance to companies that might make such amendments in the future.

About The Author

Dan Sachs, ZwillGen’s inaugural Fellow, assists ZwillGen attorneys on a broad range of matters, including litigation, investigations, product counseling, regulatory compliance, and policy. Prior to joining the firm, Dan worked at Facebook, where he assisted the Chief Privacy Officer for Policy in responding to federal, state, and international policy developments, engaging with regulators and stakeholders, and advising business units on privacy issues. During law school, Dan was a member of the George Washington Law Review and served as a research assistant to Professor Jeffrey Rosen, focusing on U.S. and international consumer privacy and surveillance issues. He was a legal intern with ZwillGen in the summer of 2012. Dan also worked as a legal intern with the U.S. Attorney’s Office for the District of Columbia.