As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.
The famous rapper The Game -- known for such hits as "My Life" and "Hate It Or Love It" -- posted a photo of his children's former babysitter on his Instagram account alongside the caption: "Beware if this person is watching your children, she is a very dangerous baby sitter." The post was one of several that concerned The Game's ex-babysitter, Karen Monroe.
A closer look into Instagram's new terms of service shows that currently, in the "Rights" section of Instagram's terms use, it states that rather than giving Instagram ownership of the content posted, users "grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service." Instagram also emphasizes that the individuals own the content they post, but the photographs remains subject to the broad license granted to the company.
It's unclear yet what the fallout from the controversy will mean for journalists who have been signing up for Instagram accounts as a medium to broaden their viewership. Journalists have been using Instagram for some time now. Photographers from the Associated Press have taken to Instagram as one mode of audience expansion; during the 2012 presidential campaign, the AP asked staff photographers to use the app while on the campaign trail. NBC News has also used the app to crowdsource photos from audience members during concerts held outside of The Today Show. The movement towards branching out is strategic, as Instagram currently has over 130 million users.
The app also encourages users to attach the hashtag #breakingnews to photos they upload which may be newsworthy. But if journalists begin to make widespread use of Instagram as a news source and news platform as they have with Twitter, they may want to think twice before republishing user-submitted photographs. The mere act of posting photographs to a social media site, or even tagging them with a #breakingnews hashtag, is unlikely to be considered permission to the world to reproduce those photos in other contexts -- as Agence France-Presse and the Washington Post learned in January when, without permission, they republished photos uploaded by a Twitter user.
Now, Instagram's CEO has stated directly in a post on the company's blog that "it is not our intention to sell your photos," which, notwithstanding the potential contractual loophole identified above, could put the company in hot water for deceptive trade practices if they go back on their word and exploit user photos in a resale market. Nevertheless, as applications like Instagram shift from a social model to a functional model for newsrooms across the country, journalists should be aware of the legal regimes surrounding such services.
Samantha Scheller is a rising 2L at the University of North Carolina School of Law.