SHARE



ABOUT THE AUTHOR


Justin Castillo
Justin G. Castillo is a partner in the law firm of Levine, Blaszak, Block & Boothby, LLP ("LB3"), where he...
Read Full Bio >>
SHARE



Justin Castillo | January 01, 2013 |

 
   

What Enterprises Can Learn from the Consumer Backlash Against Instagram

What Enterprises Can Learn from the Consumer Backlash Against Instagram This is a "teachable moment" for enterprises regarding the dangers of online terms.

This is a "teachable moment" for enterprises regarding the dangers of online terms.

Instagram, the popular photo-sharing social media site, recently ignited a firestorm of protest from consumers during its short-lived attempt to revise its terms of service to allow it to "monetize" (if not actually sell) user content. Critics of the new terms charged that, while ownership of a photo or other content nominally remained with the user, the proposed new terms would have given Instagram broad license to profit from users' content. In the digital world, where ownership is less important than control, Instagram's assertion that it was not trying to claim ownership of users' content was, critics suggested, a distinction without a difference.

An unexpected dividend of the incident is that it is a "teachable moment" for enterprises regarding the dangers of online terms. While I've written before about the dangers that service guides pose to enterprise customers, the Instagram donnybrook provides some useful new perspectives and insights regarding on-line terms ("OLTs" for ease of reference).

Lesson One: On-line Terms are Convoluted and Complex by Design
Service providers don't like to discuss how they draft OLTs. While trying to mollify customers about the proposed new OLTs, Kevin Systrom, Instagram's CEO, provided (perhaps unintentionally) some candid insights into the drafting of OLTs. The key take-away from his comments is that service providers do not draft OLTs to be clear and unambiguous. Instead, OLTs consist of complex and confusing language precisely because they are readily available for all to see.

In a post on the company's blog, Systrom claimed that "Legal documents are easy to misinterpret." This statement is nonsense: a competent lawyer can draft documents that clearly and unambiguously state the parties' obligations. In fact, this assertion is a variation on a time-honored service provider tactic: when a customer asks you why your boilerplate is so embarrassingly overreaching or one-sided, claim that the customer is either misinterpreting it or that the language of the provision did not capture the service provider's "intent." The fact is that, when service providers draft OLTs, they know exactly what they are trying to say; there just isn't any upside in saying it clearly.

Instagram's explanation was telling in its calculated ambiguity. The post conceded that, "From the start, Instagram was created to become a business" (translation: we need to monetize this stuff). According to Systrom, Instagram's desire

"to experiment with innovative advertising" was "[mis]interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.
(emphasis added).

Readers should note: Systrom's denial that Instagram planned to "sell" user content avoids the fact that the plan all along was to monetize content not by selling it, but by licensing it, using the broad licensing rights granted by the quickly-withdrawn new OLTs.

Bottom line: OLTs may look like innocuous boilerplate, but they require close scrutiny to understand what's really going on.

Lesson Two: When it Comes to Fighting Unreasonable Terms, Sunshine is the Best Disinfectant
Which group of users would you expect to be more vocal about changes to OLTs: Consumers who pay nothing for an entertaining social media service, or sophisticated enterprise customers who pay millions for mission-critical connectivity? The answer may surprise you.

Ironically, when service providers overreach, consumers seem more proactive about responding vocally and forcefully. Instagram is just the latest example. For example, in late 2011 Verizon tried to impose a $2 "convenience fee" for consumer customers who used credit cards to pay bills. The backlash was overwhelming; less than a day later, Verizon withdrew the charge. As Ben Rattray, founder of Change.org (which helped some consumers create on-line petitions protesting the charge) explained: "In many ways, corporations are more subject to the influence of consumers than politicians to voters.... Companies cannot tolerate being a public pariah. You have brand equity that is so fragile."

Ironically, Verizon recently rolled out a similar convenience charge in its enterprise OLTs. To the best of my knowledge, there has been no enterprise backlash, and the charge remains in place.

Consumers are also working proactively to monitor and compare OLTs. The website Terms of Service--Didn't Read works to rate and label website terms and privacy policies using a grading system ranging from Class A (very good) to E (very bad). The website's tag line is that "'I have read and agree to the [OLTs]' is the biggest lie on the web. We aim to fix that."

Carriers and other service providers will use OLTs to expand their rights and circumscribe yours whenever possible, and they will retreat only when challenged.

Lesson Three: Above all, Protect Your Content (and Your Customers' Content, Too)
The final lesson from Instagram is that tensions between service providers and customers regarding content will only increase. Leveraging Big Data to monetize content is all the rage, especially in the mobile world. And nobody is in a better position to do this than providers of network services, who happen to be on the prowl for high-margin initiatives wherever they are to be found.

The battles won't revolve just around ownership of content; the right to control and/or use that content will be just as crucial. In the enterprise space, for example, Verizon recently claimed broad rights in its OLTs to exploit customer confidential information (though savvy customers could override the provision).

There are many content-related pitfalls for unwary enterprises. Many carrier contracts are drafted so that the customer must "opt out" of default provisions that give the carrier broad rights to use and share the customer's Customer Proprietary Network Information (CPNI) for reasons other than providing service. Another troubling sign is that some carriers now claim that technical hurdles make it impossible to protect CPNI.

Well-organized consumer protests helped to turn back Instagram's proposed changes to its OLTs, at least for the time being. But this was just a skirmish in a much larger war between service providers and users over control of information that will only become more pertinent as more enterprises move to the cloud. The sooner that enterprise customers realize that this is a battle that they, too, must fight, the better off they will be.





COMMENTS



Enterprise Connect Orlando 2017
March 27-30 | Orlando, FL
Connect with the Entire Enterprise Communications & Collaboration Ecosystem


Stay Up-to-Date: Hear industry visionaries in Keynotes and General Sessions delivering the latest insight on UC, mobility, collaboration and cloud

Grow Your Network: Connect with the largest gathering of enterprise IT and business leaders and influencers

Learn From Industry Leaders: Attend a full range of Conference Sessions, Free Programs and Special Events

Evaluate All Your Options: Engage with 190+ of the leading equipment, software and service providers

Have Fun! Mingle with sponsors, exhibitors, attendees, guest speakers and industry players during evening receptions

Special Offer - Save $200 Off Advance Rates

Register now with code NOJITTEREB to save $200 Off Advance Rates or get a FREE Expo Pass!

April 5, 2017

Its no secret that the cloud offers significant benefits to enterprises - including cost reduction, scalability, higher efficiency, and more flexibility. If your phone system and contact center are

March 22, 2017

As today's competitive business environments push workforces into overdrive, many enterprises are seeking ways of streamlining workflows while optimizing productivity, business agility, and speed.

March 8, 2017

Enterprise IT's ability to innovate is critical to the success of the business -- 80% of CIOs agree. But the CIO role has never been more challenging than it is today, with rising operational respo

March 23, 2017
Tim Banting, of Current Analysis, gives us a peek into what the next three years will bring in advance of his Enterprise Connect session exploring the question: Will there be a new model for enterpris....
March 15, 2017
Andrew Prokop, communications evangelist with Arrow Systems Integration, discusses the evolving role of the all-important session border controller.
March 9, 2017
Organizer Alan Quayle gives us the lowdown on programmable communications and all you need to know about participating in this pre-Enterprise Connect hackathon.
March 3, 2017
From protecting against new vulnerabilities to keeping security assessments up to date, security consultant Mark Collier shares tips on how best to protect your UC systems.
February 24, 2017
UC analyst Blair Pleasant sorts through the myriad cloud architectural models underlying UCaaS and CCaaS offerings, and explains why knowing the differences matter.
February 17, 2017
From the most basics of basics to the hidden gotchas, UC consultant Melissa Swartz helps demystify the complex world of SIP trunking.
February 7, 2017
UC&C consultant Kevin Kieller, a partner at enableUC, shares pointers for making the right architectural choices for your Skype for Business deployment.
February 1, 2017
Elka Popova, a Frost & Sullivan program director, shares a status report on the UCaaS market today and offers her perspective on what large enterprises need before committing to UC in the cloud.
January 26, 2017
Andrew Davis, co-founder of Wainhouse Research and chair of the Video track at Enterprise Connect 2017, sorts through the myriad cloud video service options and shares how to tell if your choice is en....
January 23, 2017
Sheila McGee-Smith, Contact Center/Customer Experience track chair for Enterprise Connect 2017, tells us what we need to know about the role cloud software is playing in contact centers today.