Nothing in this article is to be construed as legal advice; rather, the information derived from the cases discussed below are for educational purposes only.

This summer, I, like so many other users, began to notice an increase in “community guideline” flags and takedowns on Instagram, and received an explosion of legal inquiries regarding these and free speech. At the same time, we heard the increased rhetoric around Trump’s threats to ban TikTok due privacy concerns. Finally, certain conversations with individuals who work in classified positions about the extreme reach that social media platforms have over our personal data, paired with my personal observations sent me on a deep dive on the question of the intersection of 1st Amendment free speech rights with social media. The only true answer to this question can be found in each platforms’ Terms & Conditions, which led me on a deep dive of researchof social media platform and privacy rights.  

As an enneagram 8, by nature, I am naturally skeptical of anything with a propensity to control, and it’s unequivocal that social networking creates unconscious habits that control us. As online business owners, or business owners who rely on social platforms to market many aspects of our businesses, it’s critical that we are at least vaguely aware of legal ramifications of our use. For a further examination of the psychological aspect of  social media, I highly recommend that you watch the Netflix documentary “the Social Dilemma”. 

The legal landscape around social media/social networking is going to evolve, rapidly, and is already beginning to do so. 

1. FACEBOOK. 

This summer, Facebook “offered to pay $650 million to settle a lawsuit in which it was accused of illegally collecting biometric data through a photo-tagging tool provided to Facebook users.” https://www.bloomberg.com/news/articles/2020-08-12/facebook-s-instagram-targeted-in-new-lawsuit-over-biometrics. 

Details over what was revealed (or more accurately, not shared) in this litigation are simply speculative. However, Facebook has never hidden the fact that they hold onto data, even after it is deleted. For example, “When you delete content, it’s no longer visible to other users, however it may continue to exist elsewhere on our systems…”. You can read more about Facebook’s terms of service here. Like it or lump it, just know that best practices are that you should never share something you wish could someday be “taken back”. 

2. INSTAGRAM. 

Now, Facebook Inc. is facing a new lawsuit, this time, over accusations of privacy violations as they relate to Instagram.

When you use an online platform, you agree to their terms of services. If the cases against Facebook and Instagram teach us anything, at least let it be that. 

The case precedent established by Stephanie Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 1:18-cv-00790 (SDNY), immediately drives home the point that when you use an online platform, you agree to their terms of services. This includes your own website- when people access your website, they agree to your terms- so make sure they are your terms. Find more about that here.

3. If you use social media for business, stay abreast of your intellectual property rights to the content you share. 

Earlier this spring, a case came before a New York judge wherein a photographer brought a case against Mashable, claiming that Mashable ran afoul of federally-protected copyright rights when they embedded one of her photos, from Instagram, on their own site. In June 2020, the New York federal court re-examined the 2018 case by stating that the court “adheres to its previous holding that, by agreeing to Instagram’s Terms of Use” when she signed up for the Facebook-owned photo-sharing app.” Stripping the legalese from this statement, the judge is stating that the Photographer effectively gave Mashable the rights to her photograph in accordance with Instagram’s terms of service, since the terms and conditions allowed third parties to embed photographers without her specific authorization, as she essentially granted users a sublicense to embed the photo, on public accounts. In other words, initially, this New York court’s holding worked against photographers. 

The case is currently being reexamined in New York, and at the time of this writing, no determination has been reached. However, this re-examination could prove to be hugely beneficial to photographers, as the initial holding set forth a precedence that essentially, all photos shared on Instagram could be “reshared” if embedded, as stated above. The question becomes whether or not users actually license photographs to Instagram in a way that provides for a sublicense. This question will be particularly interesting to photographers who have federal copyright registrations for their work. 

4. CURRENTLY:

A current case levied against Facebook Inc, (specifically, Instagram), brought by an individual as part of a class action lawsuit, argues, in part: 

“5. In direct violation of Sections 15(a)-(e) of the BIPA, Facebook is actively collecting, storing, disclosing, profiting from, and otherwise using the biometric information of its reportedly more than 100 million Instagram users without any written notice or informed written consent, including millions of Illinois residents.

6. Facebook has readily admitted to its collection of biometrics from Instagram users. Its facial recognition software works by scanning faces of unnamed people in photos or videos to analyze details of individuals’ faces and creating a corresponding “face template” for each face, and then storing that face template for later use and/or matching it to those already in a database of identified people. Facebook has said that users are in charge of that process, but in reality, people cannot actually control the technology because Facebook scans their faces in photos and videos uploaded by other users, even if their individual facial recognition setting is turned off.

7. Facebook surreptitiously captures its Instagram users’ protected biometrics without their informed consent and, worse yet, without actually informing them of its practice. Upon information and belief, once Facebook captures its Instagram users’ protected biometrics, it uses them to bolster its facial recognition abilities across all of its products, including the Facebook application, and shares this information among various entities. Facebook does all of this without providing any of the required notices or disclosures required by Illinois law.” (emphasis added). 

Whalen v. Facebook, 20-civ-03346, Superior Court of California (Redwood City).

Again, the only non-speculative conclusion to draw from this case is that it is never safe to assume that anything you share online could be permanently deleted. This is not fear-mongering, just a straightforward reminder to read the terms and conditions of any platform you use.

Conclusion:

• You will always be bound by the terms and conditions of your chosen social platforms, just as users are bound by your terms and conditions on your website
• If you are a photographer sharing photographs online, it may be wise to put a watermark on your photo when sharing (or take as many precautions as possible to trace the photograph to your business) 

Do not assume that deleted content disappears from the internet. Many of these Terms and Conditions specifically tell you that it does and will not.