Late last week, Instagram was hit with a lawsuit seeking to gain class action status as a result of its changed terms of service, but experts are calling the case flimsy.
The suit was filed in San Francisco by New York class action attorneys Finkelstein and Krinsk on behalf of California Instagram user Lucy Funes “and others similarly situated.” The lawsuit asserts breach of contract and unfair competition. It also claims that Instagram violated California’s privacy laws, which are stricter than any other state’s.
In an analysis of the case, Seattle technology lawyer Venkat Balasubramani called the suit “borderline frivolous.”
The case has two major legal shortcomings, Balasubramani said: Courts have held that revising terms of service is not sufficient grounds for a lawsuit, and the new terms of service haven’t even taken effect yet so there can be no real harm to the plaintiff.
The lawsuit points to the new terms’ ban on class action lawsuits to justify its pre-emptive filing.
According to Balasubramani and Eric Goldman, the director of the High Tech Law Institute at Santa Clara University, the change to Instagram’s terms of service likely stemmed from Facebook’s experiences with a previous class action lawsuit, Fraley v. Facebook, in which California users claimed that Facebook’s Sponsored Stories violated their privacy by using their likenesses without permission. Facebook eventually paid $20 million to settle that case. It also stopped displaying users’ likenesses as part of its social advertisements.
The most controversial change to Instagram’s terms of service, which the company has since retracted, appeared merely to clarify its existing terms using language similar to that found the settlement Facebook reached in the Fraley case, Goldman noted.
“I can’t say I’m a fan of Instagram’s recent behavior, but I’m even less of a fan of publicity-seeking throw-lots-of-garbage-into-a-complaint-and-hope-something-sticks lawsuits like this one,” Goldman said of the Instagram lawsuit.