Pot, meet kettle: The user that filed the lawsuit against Instagram is still using her account

Remember December’s controversy over Instagram’s changes to its Terms of Service? The media and user reaction to the updated policy – which including the assumption that Instagram could sell user images – was so severe that the company has been backtracking little by little ever since. To Instagram’s credit, the company remained steadfast about its policy over the ownership of uploaded photos. Still, in December a user stepped in and conveniently filed a class action lawsuit against Instagram’s policy changes. Now, Instagram wants the charges dropped and has circumstantial evidence to defend itself.

Spearheading the anti-Instagram campaign is plaintiff Lucy Funes. Now here’s why Instagram has a case to defend itself against the class action suit: Instagram gave users until January 16 to do whatever they felt was needed to prepare for the impending terms update. The actual terms of service took effect January 19. Funes was quick to jump on the class action, and filed the lawsuit just four days after Instagram’s first announcement on December 17, which was clearly one month before the new terms of service set in. Ironically, during the given 30 day period, Funes herself didn’t opt to delete or deactivate her Instagram account as was probably expected from someone who was devoting her time to suing Instagram. In fact, Reuters reports, Funes continued to remain active on her Instagram account after January 19. In fact, we found her Instagram account (which is curiously public), and she’s been consistently taking and posting photos – the most recent of them being from two days ago.

The lure of selfie appears too great for Funes to stop using the app, and her Instagram addiction really isn’t helping her case. After all, if she’s so concerned about Instagram forcibly transferring her and other users’ rights following the terms of service update, you wouldn’t expect her to be using Instagram at all in the first place. On that note, Instagram defended against the claims that the user’s original images lost its copyright once it was shared on its platform. The company cited a clause in its older terms of service, before this mess was spurred by hysteria, that Instagram’s users were the owners of all of their own content.

Despite Funes’ questionable priority, fears over the use of shared Instagram photos do have some merit. Facebook has once been sued for using its users’ profile images to sponsor brands without permission, although that case was settled with a $20 million payout by the social network. And since Instagram is a Facebook owned company, the photo-sharing platform clearly has monetization in mind.

There’s a possibility that user-uploaded Instagram photos could be used in a similar manner to promote brands. Instagram won’t necessarily sell a photo, especially after that backlash, but it could associate your work (or face) with a product that you might not necessarily be comfortable promoting – although we’re beginning to see this type of outreach, and it’s primarily done with users’ knowledge (i.e., brands advertising to you to use a specific Instagram hashtag so they can feature your content). Another possible strategy would  be to intersperse branded content into your news feed. 

While it appears there are some  holes in Funes’ case, we’ll have to wait to see if the courts heed Instagram’s request to throw out the lawsuit. The fact remains that the photo-sharing platform riled users and privacy advocates, and it has a lot of saving face to do in order to win everyone back over.