Last Friday, a California user named Lucy Funes filed a class action lawsuit in San Francisco federal court against Instagram for breach of contract and other claims in response to its revised Terms of Service (TOS).

Instagram is a mobile photo-sharing app that allows people to add effects and filters to photos. Earlier this year, Facebook acquired Instagram for $715 million, and hinted at plans to incorporate advertisements into Instagram.

On December 18, Instagram released new TOS rules suggesting it would be able to use users’ identities and photographs in advertisements. A new section stated, “You agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata) and/or action you take, in connection with paid or sponsored content or promotions, without any compensation to you.” Instagram also added a mandatory arbitration clause that forces users to waive their rights to participate in a class action lawsuit, except under some limited circumstances. The revised TOS is set to take effect on January 19.

These new rules sparked public outrage. Thousands of people wrote tweets with #BoycottInstagram and vowed to cancel their accounts. In response, Instagram released a statement saying, “To be clear: it is not our intention to sell your photos,” and deleted language about displaying photos without compensation. Instagram CEO Kevin Systrom also promised users that the company would wait to introduce new advertising plans until it had established a clear direction.

Despite these assurances, the furor over the changes hasn’t died down. Funes sued on behalf of all California-based Instagram users who would be affected by the new terms and who have at least one picture of the account owner on the site. The lawsuit claims that the new TOS allows Instagram to take users’ property rights and “prevent customers for obtaining injunctive or equitable relief to ever stop Instagram.”

According to the lawsuit, users who disapprove of Instagram’s terms can cancel their profile, but then forfeit rights to photos they had previously shared. The lawsuit explains, “In short, Instagram declares that ‘possession is nine-tenths of the law’ and if you don’t like it, you can’t stop us.”

About the author

Matt Faustman

Matt Faustman

Matt is the co-founder and CEO at UpCounsel. Matt believes in the power of online platforms to change antiquated ways of life and founded UpCounsel to make legal services efficiently accessible. He is responsible for our overall vision and growth of the UpCounsel platform. Before founding UpCounsel, Matt practiced as a startup and business attorney.

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