By Dan Levine
SAN FRANCISCO, Dec 24 (Reuters) - Facebook's Instagram photo
sharing service has been hit with what appears to be the first
civil lawsuit to result from changed service terms that prompted
howls of protest last week.
In a proposed class action lawsuit filed in San Francisco
federal court on Friday, a California Instagram user leveled
breach of contract and other claims against the company.
"We believe this complaint is without merit and we will
fight it vigorously," Facebook spokesman Andrew Noyes said in an
e-mail.
Instagram, which allows people to add filters and effects to
photos and share them easily on the Internet, was acquired by
Facebook earlier this year for $715 million.
In announcing revised terms of service last week, Instagram
spurred suspicions that it would sell user photos without
compensation. It also announced a mandatory arbitration clause,
forcing users to waive their rights to participate in a class
action lawsuit except under very limited circumstances.
The current terms of service, in effect through mid-January,
contain no such liability shield.
The backlash prompted Instagram founder and CEO Kevin
Systrom to retreat partially a few days later, deleting language
about displaying photos without compensation.
However, Instagram kept language that gave it the ability to
place ads in conjunction with user content, and saying "that we
may not always identify paid services, sponsored content, or
commercial communications as such." It also kept the mandatory
arbitration clause.
The lawsuit, filed by San Diego-based law firm Finkelstein &
Krinsk, says customers who do not agree with Instagram's terms
can cancel their profile but then forfeit rights to photos they
had previously shared on the service.
"In short, Instagram declares that 'possession is
nine-tenths of the law and if you don't like it, you can't stop
us,'" the lawsuit says.
Kurt Opsahl, a senior staff attorney with the Electronic
Frontier Foundation who had criticized Instagram, said he was
pleased that the company rolled back some of the advertising
terms and agreed to better explain their plans in the future.
However, he said the new terms no longer contain language
which had explicitly promised that private photos would remain
private. Facebook had engendered criticism in the past, Opsahl
said, for changing settings so that the ability to keep some
information private was no longer available.
"Hopefully, Instagram will learn from that experience and
refrain from removing privacy settings," Opsahl said.
The civil lawsuit in U.S. District Court, Northern District
of California, is Lucy Funes, individually and on behalf of all
others similarly situated vs. Instagram Inc., 12-cv-6482.
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