If you follow any kind of tech or social media news, you’ll know about the announcement from mobile photo app Instagram and its new Terms of Service that come into play on January 16.

If you haven’t seen any of the stories, the main gist of it is this:

  • Instagram’s owners, Facebook, will have the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes.
  • Ads may or may not be disclosed to the user.
  • A business may take your uploaded photo, use it in an ad, and not have to compensate you.
  • If you continue to upload images after January 16 and then decide to delete your account, your images can still be sold by Facebook as their property.

While there are some questionable inclusions on these new terms – I’d love to hear what the FTC has to say about non-disclosure of ads, which completely contradicts their edicts – it’s the last one that is the most concerning, since it enforces my view that we’re now part of the opt-out economy.

Whatever Happened to Permission Marketing?

In 1999, author and marketer Seth Godin published the seminal Permission Marketing. While the ideas in the book weren’t completely new, it was a wake-up call to marketers and businesses everywhere.

Instead of spamming people with crappy marketing messages they didn’t want, and invading email inboxes with newsletters they weren’t subscribed to, a new best practice emerged – let the people choose what they subscribe to, and what messages they received.

Since then, various laws have come into place to protect consumers – the CAN-SPAM Act covers all commercial messages, while the U.K. introduced the Privacy and Electronic Communications (EC Directive) in 2003, requiring opt-in for all email marketing campaigns.

So far so good, right? Except in today’s digital landscape, where it seems we’re moving more towards the opt-out economy versus the opt-in one we fought so hard to create and support.

Social Scoring and Signing In Before You Can Leave

For most social networks – Facebook, Twitter, etc., – you still use the opt-in process. So, I need to physically sign up to use Twitter’s platform if I want to tweet. For the most part, this is how social platforms work. Then social scoring arrived and opt-out seemed to be the new opt-in.

The most well-known of the social scoring platforms, Klout, created a profile for you whether you liked it or not. If you had a public Twitter account, you had a Klout account.

If you didn’t want to partake in Klout’s promotion of you to their advertising partners, you actually had to create an account with Klout just to delete it, completely going against the idea of permission marketing and consumer wishes.

Klout’s reasoning is that they’re only accessing information that is publicly available, and that’s true. The main problem is your Klout score can impact how you’re perceived by companies and other online users – and you have no say in that, unless you sign up to try and play that system.

However, the bigger picture here is the question of opt-out versus opt-in, and Klout’s successes (millions of users and supporters and thousands of partners) seems to indicate opt-out can be a workable process.

The Instagram Question

Which brings us back to Instagram’s recent policy announcement. While it could be argued that unless you pay for the product you are the product, Instagram’s wording goes way beyond that. Consider this:

  • When you share photographs on Instagram that include other people, and that photo is then sold or used by an Instagram partner in a promotional campaign that goes against the beliefs of your friend in the picture (she supports PETA and Instagram use your image in a fur coat promotion), your friend can’t do anything about it because it’s your photo.
  • If Instagram has the right to access your friends’ details on Facebook during the sign-in process, you’ve essentially sold their details to Instagram’s partners and they may never know that until they start getting bombarded with partner ads.

These are just two areas that the new policy could potentially be used. Not only can you not opt-out of this happening if you stick around after January 16, your friends (who may not even be on Instagram) have even less of a chance to opt-out of their likeness being used for promotional gain.

Here’s another angle to take:

I get a picture taken with you. I work for a brand, and I use Instagram. I tell Instagram all pictures are my property and all people in them agree to be shared. Then I, as the brand employee, put that picture up with a promo for Westboro Baptist Church (let’s say they’re a client), with the caption “We support the ban on gays” next to a book entitled “Why The Real Family is a Man and Wife Family”.

By definition, and your inclusion in that picture, you now endorse both Westboro Baptist Church and are anti-gay. Would you be happy with that possibility?

Understanding this, and seeing what could potentially happen, is the reason Facebook posts and news article comments are alight with concern from current Instagram users, many of who have said they will be deleting their accounts.

You could argue that we give up the right to any true privacy when we open up an account with these apps and, for the most part, you’d be right. When you use something for free that costs money to maintain, there needs to be some revenue option that kicks in.

The problem with the Instagram change, though, is that Facebook are essentially saying “You’re our new freelance photographer but we’re not paying you” as well as curtailing your basic right to hold on to your property when you leave a platform.

And it’s that last point that could well be the straw that breaks the Instagram camel’s back. Time will tell.

Update: December 18, 5.00pm EST – Instagram co-founder Kevin Systrom has updated the corporate blog with an explanation (though it doesn’t address the FTC/non-disclosed ad concerns).

Update: December 23 – A class action lawsuit has been brought against Instagram for breach of contract.

image: Casey Neistat

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