Instagram sets a precedent by an "insta" change in social media contracts & users' ignorance of Instagram's terms of use may lead to acceptance by a simple "snap".

Author:Cocozza, Nicole
 
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  1. INTRODUCTION

    In the age of technology, social media has taken to new heights and continues to grow rapidly. The development of social media networks has led users to be creative and innovative in the way they express themselves to the public. (2) A social media site is described as a "web-based service[] that allow[s] individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system." (3) One social media platform that has recently cultivated a unique identity for its user is Instagram. (4) Instagram is an online social networking service that allows users to take pictures or videos and apply digital filters to them before sharing them on other social networking services such as Facebook and Twitter. (5) However, the unique service that Instagram offers begins with a hook which users tend to ignore, the terms of use. (6)

    Like any online social media network, the terms of use express the network's policy for users to hopefully read and follow. (7) In June of 2012, the popular social media network, Facebook Inc., bought Instagram for one billion in cash and stock. (8) This deal led to the transformation of Instagram's controversial terms of use. (9) Instagram's terms of use binds the users into a so-called contract. (10) Instagram outlines its terms of use and in exchange for the user's acceptance, they are allowed access to the services Instagram provides. (11) This transformation led to a debate about how much control over personal freedom users must give up in order to live and participate in a world steeped in social media. (12)

    This Note will argue that Instagram's new terms of use policy will set a precedent for how social media network companies should develop their future user contract policies. Part II of this Note examines the development of contracts in social media networks. This section will explore the basic principles of entering into a contract, with an emphasis on substantive contract law provisions exemplified by the Restatement, the Uniform Commercial Code (UCC) and Uniform Computer Information Transaction Act (UCITA). Also, there will be a short segment on a procedural statute in the United States, known as the Uniform Electronic Transaction Act (UETA). Additionally, Part II will explore the history of an arbitration clause in a contract, the development of the terms of use agreements policies on the Internet and Finally, children using social media sites.

    Part III of this Note analyzes the development of Facebook's user terms and policies that created the foundation for Instagram's new contract policy. Part III will also analyze the recent case, Rodrigues v. Instagram, LLC, (13) which challenged Instagram's terms of use. Part IV will be broken down into five parts: (1) A "point and click" policy, which will demonstrate that once a user creates an Instagram account, they have essentially agreed to all terms in the contract, (2) Instagram's "take it or leave it" policy, (3) Instagram's development of an arbitration clause that prevents class action suits and states all legal complaints must be brought in arbitration, (4) minors assenting to Instagram's terms of use, (5) the effect of Instagram's "take it or leave it" policy on other social media networks. This Note will conclude that Instagram's new terms of use will set a precedent for the future of contract policies in social media networks.

  2. HISTORY

    1. Contract Law Provisions

      1. Common Law-Re statement

        In an age of technology, there has been increasing development of social media sites and their own terms of use policies. (14) Courts have struggled to define the scope of traditional contract principles and their applicability to the terms of use agreements in the social media context. (15) In order to understand the development of social media networks and their terms of use by using contract principles, one must learn the history of contract law. (16) The history of contracts in the United States developed with the use of the common law, which is governed by the Restatement of Contracts. (17) The common law is made up of prior cases to determine the rules applicable to current disputes developed by court decisions on the topic and modified by the legislation. (18) If the facts of a prior case are similar to the present case, then the ruling in the prior case becomes the controlling precedent for the present suit. (19)

        Under the common law, a contract is defined as a promise or set of promises that is enforceable at law. (20) To form a contract, there must be a meeting of the minds between the two parties. (21) Mutual assent occurs when there is an offer and acceptance between the two parties in order for an agreement to be formed. (22) Contracts also require there to be consideration, such as an act, forbearance, or a return promise, that is bargained for and received by a promisor from the promisee. (23) A contract must be analyzed from an objective standard, which is a reasonable person's position on the terms of the agreement. (24)

      2. Uniform Commercial Code (UCC)

        In order to comprehend the development of the terms of use policies of social media networks, one must understand the Uniform Commercial Code ("UCC"). (25) The UCC is applicable to all sales of goods. (26) Most states have adopted Article 2 of the UCC, which governs contracts for the sale of goods, and only a few have adopted Article 2A, which governs contracts for the lease of goods. (27) The UCC defines "goods" as movable things with certain specified exceptions. (28) There has been a major controversy in the court system involving whether the use of computer software contracts are for "goods" or "services" under the UCC. (29) A majority of the courts have applied a "predominant purpose" test in order to consider whether computer software is a "good." (30)

      3. Uniform Computer Information Transactions Act (UCITA)

        Although courts have applied UCC Article 2 to software licenses agreements, it is not clear whether Article 2 applies to other transactions in computer information agreements. (31) For example, the UCC inadequately addressed commercial transactions involving intangibles such as information and software as well as transactions involving both goods and information. (32) Due to special contract and distribution issues presented by the "virtual" world of the Internet, the Uniform Computer Information Transactions Act ("UCITA") was drafted. (33) Originally the UCITA was drafted to be Article 2B of the UCC, and would have applied to most industries involved in the creation and licensing of intangibles. (34) Comparable to the UCC, UCITA is a substantive uniform contract law that may be adopted by state legislature and be superimposed on the common law in connection with contracts for the licensing of computer information. (35) Currently, UCITA has only been adopted by two states, while a number of states have adopted "bomb shelter" legislation that invalidates any choice of law provision pursuant to which UCITA would apply to a transaction. (36)

        Similar to the UCC, it is difficult to determine whether the UCITA should apply to a contract's formation. (37) However, the terminology in the UCC and UCITA define certain contract principles differently. (38) For instance, under UCITA the term "record" is replaced by "writing" and "signature" is used in place of "authentication." (39) Additionally, unlike the UCC, UCITA applies to transactions involving "computer information," which applies to agreements to create, modify, transfer, or distribute computer software, interactive multimedia products, computer data and databases, Internet and online information, and other "computer information transactions." (40) UCITA would authorize most shrink-wrap licenses and clip-wrap agreements, recognize electronic records, authentication, and agents, and establish rules for contract formation, terms and construction, express and implied warranties, ownership and transfers, and damages and remedies. (41) Conversely, UCITA does not apply to "core financial service transactions, compulsory licenses, employment contracts other than independent contractors outside the news reporting industry, contracts in which the delivery of the information as computer information is discretionary or immaterial, and subject matter otherwise regulated under specific articles of the UCC." (42)

      4. Procedural Statutes: Uniform Electronic Transaction Act (UETA)

        The substantive contract law provisions exemplified by the Restatement, the UCC and UCITA are not the only provisions that are helpful, but rather there are also procedural statutes that govern electronic interstate and foreign commerce in effect in the United States. (43) At the end of the twentieth century, two electronic transaction statutes were adopted in order to eliminate barriers to electronic commerce, the Uniform Electronic Transaction Act ("UETA") and ESign (44) UETA was promulgated by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in 1999 and is effective in forty-seven states including the District of Columbia. (45) The purpose of UETA is to facilitate electronic commerce, but it is not a general contracting statute or a digital signature statute. (46) The central goal of UETA is to complement the existing state digital signature laws. (47)

        UETA allows for a record, a contract or signature not to be denied its legal status on the basis of its electronic form, and if a law requires a signature, an electronic signature can satisfy that requirement. (48) UETA also allows for the use of electronic agents in electronic contracts and "addresses attribution of electronic records or electronic signatures, the effect of changes or errors in an electronic record that may occur during transition, requirements that a signature or record be notarized, acknowledge, verified,...

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