Instagram: Uncharted Territory for Courts and Journalists

As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.

The famous rapper The Game -- known for such hits as "My Life" and "Hate It Or Love It" -- posted a photo of his children's former babysitter on his Instagram account alongside the caption: "Beware if this person is watching your children, she is a very dangerous baby sitter." The post was one of several that concerned The Game's ex-babysitter, Karen Monroe.

Monroe is now suing the superstar for defamation, claiming that since The Game's Instagram posts, she has lost her ability to work and is now suffering from depression. In order to succeed on her defamation claim under California law, Monroe will have to prove that The Game's published statements were false; unprivileged; have a natural tendency to injure or cause "special damage;" and that The Game's fault in publishing the statement amounts to at least negligence. Although Instagram's Terms of Use state that users "must not defame" under Section 6 of its Basic Terms, it remains to be seen whether Monroe can succeed on her defamation claim in California court.

Meanwhile, the stir caused earlier this year by changes to Instagram's terms of use continues to play out. At the end of 2012, Instagram notified users that it would be changing its terms of use, causing some users to coin the alterations an "Instascam" in the belief that the new terms would allow Instagram to exploit user photos commercially in new and disturbing ways. After notification of the pending changes, one unhappy Instagrammer filed a federal class action lawsuit against the company in a U.S. District Court in the Northern District of California. The complaint, filed a month prior to the installment of Instagram's new terms of service, alleged claims for breach of contract and violation of California's unfair business practices law, Business & Professions Code Section §§ 17200 et seq. The case was dismissed in mid-July due a lack of subject matter jurisdiction, a problem relating to the geographic location of the class of plaintiffs. Despite this setback, the plaintiffs re-filed in state court days after the federal court's dismissal and the case is ongoing.

A closer look into Instagram's new terms of service shows that currently, in the "Rights" section of Instagram's terms use, it states that rather than giving Instagram ownership of the content posted, users "grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service." Instagram also emphasizes that the individuals own the content they post,but the photographs remains subject to the broad license granted to the company.

Instagram's current terms of use also allow the app to place "advertising and promotions on the Service or on, about, or in conjunction with your Content." This language was at the center of the controversy over the changes to the terms; Instagram had planned to alter its terms of service to limit their terms of service to merely the "display" of Instagram photos "in connection with" advertising. Many Instagrammers were up in arms against the proposed changes and the backlash caused Instagram to retract its proposed changes to the section. Ironically, Instagram's intended changes would have provided users with clearer rights to their photos; by blocking the ch