When Instagram attempted to overhaul its terms of service in December of last year, to say people were mad would be putting it very lightly. There were pitchforks and fire. Instagram was the murderous monster or hunchback or witch – choose whatever metaphor you want – and we were chasing it through the village, screaming and pulling our hair like madmen.
Of course, the more onerous revisions were quickly dropped, and it would appear that a bit of overhype about what the original changes meant to begin with add some fuel to the fire.
Regardless of these things, one user decided to bear a cross for the rest of us and sue them. Lucy Funes took up all Instagrammers’ cause by suing them for changing their terms of service. However the plaintiff didn’t do one very important thing (actually, two, if you count not realizing that suing a service for changing its terms of service when they’ve notified users is typically a losing battle): She never stopped using her damn Instagram account.
She’s been actively uploading photos since filing the lawsuit – something we noticed earlier this year. Funes’ personal choice to keep using the app she was also suing led the plaintiff in the lawsuit to be replaced by one Lucy Rodriguez, which happened back in March. It’s a little confusing as to whether the person suing Instagram is the same Lucy (with a new last name to save some face in an increasingly dismal-looking case) or someone else. But it’s clear the switch up was because Funes’ couldn’t stop using Instagram.
This is noted in the court documents (which you can read in full below):
“Plaintiff did not cancel her Instagram account prior to January 18, 2013, the date the new terms of use became effective.”
“At all times relevant hereto, [plaintiff] maintained an active account with Instagram to which [plaintiff] has uploaded pictures.”
The inability to put the damn smartphone and stop taking food porn pictures wasn’t the only issue with the case. Lawyers were also unable to prove the level of “injury” the plaintiff suffered because of the TOS change-up were large enough, and there were problems regarding the state the case was filed in (California) and laws regarding where a defendant and plaintiff are based; basically you have to meet certain requirements when filing in the same state to prove your case and the prosecution wasn’t able to.
This was actually the last in a series of appeals to keep the case around, but it wasn’t enough and the case has been officially dismissed. However, the prosecution has already open up the case again and filed in San Francisco, so the fight is not over.
We’ve reached out to Instagram and the prosecution for comment and will update this space if we hear back – but the moral of the story? People in glass houses taking selfies shouldn’t throw stones. If you’re going to sue it, don’t use it, kids.
