Seventeen percent of all American adults online use Instagram, a social media platform whose motto is, “Capture and Share the World’s Moments.” Instagram is one of the most popular social networks because it enables users to post photographs as well as videos and share them on Facebook, Twitter, and Tumblr. Every Instagram registrant is bound by its user agreement, which is structured as a browsewrap. Instagram’s terms of use (“TOU”) predicates contract formation on merely “accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications).” Instagram unilaterally modified its single-spaced, ten-pages-long (5122 words) TOU that was to apply to all members after January 15, 2013. Instagram users “who decline to accept Instagram’s new privacy policy ha[d] one month to delete their accounts, or they w[ould] be bound by the new terms.” Instagram users pushed back against the proposed TOU revision in which the social media provider claimed that it owned intellectual property rights to user-generated content. Shortly after announcing the proposed changes, public outcry prompted the social network “to retreat partially, . . . deleting language about displaying photos without compensation.” Instagram users nonetheless filed class action lawsuits challenging the new TOU.
Instagram’s revised TOU prohibits consumers from challenging its terms of use by initiating or joining class action lawsuits or class-wide arbitration. “The clause effectively cripples users who want to legally challenge the company because lawyers will not likely represent an individual plaintiff.” “Its new [TOU] require[s] users with a legal complaint to enter arbitration, rather than take the company to court. It prohibits users from joining a class action lawsuit unless they mail a written ‘opt-out’ statement to Facebook’s headquarters in Menlo Park within 30 days of joining Instagram.” On July 15, 2013, a California federal court dismissed the class action filing against Instagram and denied the plaintiffs’ motion to file a second complaint because there was no federal subject-matter jurisdiction.
Under Instagram’s arbitration clause, which mandates the American Arbitration Association (“AAA”) as the arbitral provider, consumers must essentially waive their Seventh Amendment right to a jury trial and liberal discovery. As of October 27, 2014, no Instagram user has filed a consumer arbitration proceeding with the AAA, which is hardly surprising given that the social media provider’s TOU has foreclosed the possibility of warranties and other meaningful remedies. Instagram’s TOU seems reasonable on the surface because a user can opt out of arbitration. However, a more cautious reading reveals that the user had only thirty days to opt out of arbitration after the revised terms first applied—a period that has long since expired.
It is improbable that many existing Instagram users reviewed the amended terms, let alone weighed the decision to opt out of the revised terms. The concept of the “meeting of the minds” is a legal fiction when it comes to online TOU boilerplate. A New York University Law School research team concluded that only one or two in a thousand users who accessed a major website read its TOU. Of the very few consumers who do pause to review terms, still fewer will observe that the arbitration opt-out provision expired within thirty days of Instagram posting its new terms. The opt-out clause is labeled inconspicuously and is entombed 3689 words (sixty-one paragraphs) into a TOU that lacks an index or any other navigational guide. Instagram users without training in law are unlikely to appreciate the clause’s importance because the TOU’s truncated discussion makes no mention that the pre-dispute mandatory arbitration clause extinguishes the user’s Seventh Amendment right to a civil jury trial and the user’s right to liberal discovery. Previous to the research studies presented in this Article, no empirical evidence existed regarding whether Instagram’s TOU, which the social media provider structures as a browsewrap, is typical of social media contracting practices. In the absence of systematic data, policymakers have no alternative but to enact laws and regulations governing TOUs without the “behavioral and empirical research necessary for crafting cost-effective regulations.” Our study enables reformers to evaluate TOUs based on objective data drawn from an examination of hundreds of websites as opposed to individual cases and anecdotes.
