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.

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Mathisha Panagoda
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