Advertising Law Blog

Of Counsel Jonathan Ezor was quoted in a Law360 article (subscription required) about a recent proposed class action against Instagram LLC in connection with changes to its existing privacy policy. Instagram users were offered the opportunity to opt out by discontinuing service before the new policy would take effect. Since Instagram reserved the right to alter its terms in its original policy, made changes consistent with the language of those terms, and gave users a month's notice, a California judge rejected the action, showing that companies can protect themselves from privacy suits by properly informing users of policy revisions and allowing them to opt out. This raises a question about the application of the new terms to a user’s existing content. Ezor advises that, “Sites that are making material changes to privacy policies that expand information use or sharing must either segregate pre-change from post-change information, or get opt-in from the earlier users for the new use. Otherwise, they risk Federal Trade Commission and other enforcement action, and potential exposure to lawsuits that may be more successful than this one.”