Australia: #YourRights on Instagram

Last Updated: 29 November 2015
Article by Mathisha Panagoda

If you're like me, you spend an alarming amount of time on social media. With the improvement of cameras on mobile phones and digital cameras that instantly upload images, it comes as no surprise that apps like Instagram have taken off. Many of us take some sense of pride in the photos we take whether it's a sunset on Sydney Harbour, that perfect Sunday brunch or just an awkward photo of your intoxicated friend.

You don't have to be a great photographer to care about what happens when you upload your photo. After all, that photo of your drunken friend may be shared and go "viral" and you could be seen as the one responsible for it. It's important to know what happens when you upload content and your rights and responsibilities. Ultimately this is all contained in Instagram's Terms of Use, Privacy Policy and Community Guidelines.

This article is no substitute for reading the Terms but it does seek to point out a few of the basics to help you get started.

Who owns what?

Contrary to what many may think, Instagram does not claim ownership of any content that you post but by agreeing to their terms, you grant to Instagram a "non-exclusive, fully paid and royalty free, transferable, sub-licensable, worldwide license" to use the content that you post. This is very similar to the terms of other social networking sites such as YouTube. Essentially this means that you still "own" your content but you are granting Instagram all the same rights you have in how you deal with it.

It's a bit like buying a new car and granting your friend rights to use it whenever and however he wants. Technically you still own it but your friend now enjoys the practical rights to it. He could borrow it anytime he wants and even agree to lend it to someone else without asking your permission. In this sense, for example, Instagram can use your content in advertisements without requiring your permission or paying for it.

Of course you can't grant these rights to Instagram if you don't own them in the first place (just like you can't lend a car if you don't own one), so Instagram's Terms say that by posting content you agree that you own it or have the right to grant the rights to Instagram. If there are any royalties or fees due then you are agreeing to pay them. It will probably come as no surprise that once you upload content it's public and not confidential.

What if I didn't take the photo?

Just because you appear in a photo or arranged for a photo to be taken, that doesn't necessarily mean you own it. Any selfie-taking black macaque can tell you that, and it's not as straightforward for humans either. For example, appearing in a professional photo shoot does not necessarily mean that you own the copyright to it. Usually the person who takes the photo owns it so with professionals commissioned to take the photo it will depend on how the professional photographer was engaged and the agreed terms of ownership in the photograph. Always check carefully any contracts that have been signed and seek legal advice if you're unsure. If you're hiring a professional photographer make sure that you have a written agreement in place describing the terms of ownership in the photographs taken.

Community standards

Common sense will be the best guide when it comes to abiding by Instagram's community guidelines, but if in doubt, the guidelines themselves set it out pretty clearly. Only post content that's appropriate for a 'diverse' audience (i.e. nothing your grandma wouldn't approve of), don't break the law, respect each other's privacy and confidentiality, and don't spam or make fake accounts. Instagram takes no responsibility for what you post, you always remain responsible and Instagram can at any time terminate your account.

It's worth also keeping in mind that there are serious consequences that can arise when you breach community standards. Cases involving defamation or breaches of privacy for example are plentiful and on the rise around the world. It might seem funny at the time catching your mate with his pants down but there may be serious legal consequences down the track, not to mention that once it goes viral you may not be friends for much longer!

Help! I think my copyright has been breached...

The first step to take is to try and resolve the issue with the person involved. That might mean posting a comment on the account asking for it to be removed or sending a direct message.

If that doesn't work out, you can report Copyright and Trademark violations to Instagram and don't need to have an account to do so. There is a user-friendly form available online here.

Dispute resolution

Instagram and their affiliates have themselves pretty well covered through the Terms that you agree to by signing up to the service. There isn't really any ability to sue Instagram for anything that happens through the use of the service and even if you can, you are limited to recovering $US100 in damages. You even indemnify (agree to compensate) Instagram for their legal fees in relation to anything arising out of your use of the service and the content you post.

If you do want to bring a claim, you must do it within one year of the problem occurring and you are then bound to resolve the issue through US style arbitration unless you opt out of this within 30 days of arbitration arising.

If you want to take the matter to court be prepared to travel to Santa Clara, California which is the only jurisdiction available, even if you live in outback Australia. Furthermore, the laws that are applicable to everything you do with Instagram are those of the State of California and not any other location, regardless of where you live or took the photo.

In summary

Always read the website or app's terms and conditions before posting content [which apparently only 7% of people actually do, and it would take 76 days in the year to read all the tech T&C's we sign up to]. Unless you have a fifth of your year blocked out to read these conditions, most of us will just hit that accept button, but this stuff is important and although it's relatively early days for social media sites like Instagram, don't be the one caught with your pants down (literally or metaphorically) when it comes to understanding your rights.

The three step take home message is 1) take the time to read the terms and conditions of what you're signing up for 2) seek legal advice if you're unsure about anything 3) think before you post!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Mathisha Panagoda
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.