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Instagram Asks Court to Dismiss Terms of Service Lawsuit

By Robyn Hagan Cain on February 15, 2013 | Last updated on March 21, 2019

Okay, so Instagram’s proposed changes to the app’s terms of service weren’t well-received.

We can all agree that the photo-sharing service could have done a better job explaining what the new terms meant, and that it was not trying to sell users’ photos to advertisers. If you don’t like the new terms — and a lot of people don’t — you can argue that Instagram never should have made the changes in the first place.

But did the Facebook-owned company commit an actionable offense?

Lucy Funes filed a federal lawsuit against Instagram in San Francisco last December, mere days after the proposed changes were announced; around the same time Instagram partially backtracked from the proposed terms. Funes suggest that Instagram tried to "grab for customer property rights" and that her claim should be the basis of a class-action. Instagram insists that Funes' case should be dismissed, CNET reports.

A month passed between the new terms announcement, and the effective date. That was plenty of time for Funes -- or similarly-minded users -- to delete their accounts.

Funes' decision to maintain her account isn't the only strike against her lawsuit.

The new terms of service also provided a mandatory arbitration clause, "forcing users to waive their rights to participate in a class action lawsuit except under very limited circumstances," Reuters reports. Even if Funes has a claim that could survive summary judgment, that claim should be resolved in arbitration under Instagram's terms.

It does seem ridiculous for a user to sue a free app for breach of contract. Where's the consideration? Where's the harm? Furthermore, Instagram gave Funes and friends a month to stop using the service. Why didn't she shut her account down?

Should Funes be allowed to push her case forward, even though she affirmatively chose to maintain her Instagram account in the face of the new terms? Let us know on Facebook -- Ha! It's Instagram's parent company! -- or Google+ .

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