They can do this because of a horrible 2011 Supreme Court decision called Concepcion v AT&T. Since that decision, corporations have been preventing class actions lawsuits via mandatory arbitration clauses left and right. These clauses are showing up in everything from nursing home contracts to Starbucks gift cards. According to our friend Mike Rustad, who is the Thomas F. Lambert Jr. Professor of Law & Co-Director Intellectual Property Law Concentration at Suffolk University Law School, Instagram is one of the first big social media sites to insert this clause in its user agreements:
“That [arbitration] provision is not included in terms of service for other leading social media companies like Twitter, Google, YouTube, or even Facebook itself, and it immunizes Instagram from many forms of legal liability, said Michael Rustad, a professor at Suffolk University Law School…
“The clause effectively cripples users who want to legally challenge the company because lawyers will not likely represent an individual plaintiff, Rustad argued.
“‘No lawyers will take these cases,’ Rustad said. “In consumer arbitration cases, everything is stacked against the consumer. It’s a pretense, it’s a legal fiction, that there are remedies.””
Of the 157 social media services Rustad has studied only 10 contain provisions that prevent class actions. But currently Facebook (who now owns Instagram) is battling its own class action lawsuit so Instagram’s forced arbitration/anti-class action clause may just be the beginning.
The only good news, if you can call it that, is that Instagram’s arbitration clause includes an opt-out provision so if you’re reading this now, do the following before the February 15, 2013 deadline:
Send a letter to:
ATTN: Arbitration Opt-out
1601 Willow Rd.
Menlo Park, CA 94025
- your name
- your residence address
- the email you use for your Instagram account, and
- a clear statement that you want to opt out of the arbitration agreement.