A few thoughts on Instagram’s TOS problem

Can you name a successful Web service whose fortunes fell because they updated their Terms of Service?

Neither can I, but since Instagram announced proposed changes to its TOS, I’ve read a lot of commentary about how they’re alienating prolific users who post high-quality content. (A few will leave and other shutterbugs will fill the vacuum.)

Working with lawyers, I’ve drafted TOS documents for several companies. Users “click to agree” almost anything without reading it first, but that’s never stopped me from explaining policies clearly and simply. Because I’ve been on both sides of this issue, TOS changes just don’t get me worked up. As one wise soul put it, “if you’re not paying for it, you’re the product.”

I’m willing to bet that the proposed changes weren’t reviewed externally before they were announced. A TOS isn’t proprietary information, so why not recruit a working group of power users to ask them if they can work within the new guidelines? Um, Instagram has formed 1:1 relationships with the members who make the service interesting, right?

Around midday yesterday, Instagram updated its blog to clarify the TOS changes. This was the right call — if you don’t tell your story, someone else will tell it for you. I didn’t care for the tone used in the post; purely a matter of taste, but when I flip through my PR swatch book, Condescending Corporate isn’t a first choice.

“Thank you, and we’re listening” is a patronizing way to address angry users, as are statements like “legal documents are hard to understand.” I’m just glad they didn’t include “math is hard.” There’s also too much text; if users don’t read the TOS closely, I doubt this co-founder’s message got more than a quick scan. Each of his points could have been reduced to a couple of sentences. I’m sure this post was sincere, but it wasn’t persuasive.

After reading the last paragraph, a reasonable person might assume that the hue and cry raised by users would lead Instagram to revisit and change proposed policies. That’s misleading. Give the community a perceived sense of ownership and they will become engaged and passionate. Give them an overblown sense of how much they direct the company’s management and direction, and they’ll feel betrayed and ignored.

What would I have done differently? I’d have produced something more direct, like an AMA session on Reddit to discuss the proposed changes ad nauseum. A 90-second YouTube video would have had more personality and could have elicited empathy. (Moreover, YouTube’s analytics can help determine which parts of your argument resonate with your audience.)

The section of the blog post explaining that companies won’t use Instagram photos in ads read like pure CYA: if they NEVER had any intention of licensing photos to third parties for ads, why did the language appear in the revised TOS? Why not just come clean and say, “we changed our minds.”

If I were King of Instagram, I’d have put together a Town Hall so the company could speak directly to users without a PR filter. Ask someone like Xeni Jardin or Kara Swisher to moderate, and suddenly, Instagram is a steward of discussions about user-generated content. I’d even have called Apple to see if I could stream the event to stores in top markets and would have used the service to promote the event.

Regardless of what I’d have done, Instagram will weather this; I’d be surprised if their growth declines as a result of the TOS controversy.

Every communication crisis is an opportunity to engage your community. Don’t just wipe the egg off your face; make an effort to reach people where they are and be as clear as you can.



Filed under Community Management, Internet

2 responses to “A few thoughts on Instagram’s TOS problem

  1. I have to wonder if some well-heeled user might engage an attorney and take this to court–to the best of my knowledge, you cannot unilaterally and retroactively change the terms of a contract in such a way that it violates the rights of the other party, in this case their intellectual property rights. Unless the original TOS to which the user agreed stated the intent to license the user’s photos to third parties for financial gain, I am pretty sure they can’t legally change the TOS retroactively to allow them to do it. If nothing else, it would have to be considered “bait and switch.” Instagram may want to re-think this policy change and I, for one, am glad I have never used their “service.” Nor will I ever.

  2. All of the TOS I’ve crafted included language like this paragraph I copied from WordPress’ Terms:

    “Automattic reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Automattic may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.”

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