Scout Willis, the daughter of Bruce Willis and Demi Moore, is taking a stand against Instagram's anti-nude policy. After having her a few of her photos removed for violating community guidelines, Willis walked around NYC on Monday topless in protest. She subsequently tweeted the photos, with the following captions: "Legal in NYC but not on @instagram" and "What @instagram won't let you see #FreeTheNipple." In an ode to the Rihanna, who had her account deactivated early this month, Willis changed her Twitter photo to an topless image of the singer. Turns out, after sharing images from her shoot with French publication Lui, Instagram removed the photos, and threatened to ban the singer via email if she refused to stop posting topless photos, and then deleted her account. We will see if Willis' protest works, but considering Instagram's no nudes policy, which reads: "While we respect the artistic integrity of photos and videos, we have to keep our product and the content within it in line with our App Store’s rating for nudity and mature content. In other words, please do not post nudity or mature content of any kind", we aren't too hopeful.
Instagram's "Community Guidelines" go on to state: "If you wouldn’t show the photo or video you are thinking about uploading to a child, or your boss, or your parents, you probably shouldn’t share it on Instagram. The same rule applies to your profile photo. Accounts found sharing nudity or mature content will be disabled and your access to Instagram may be discontinued." So, do user protests stand a chance? While they certainly engage an audience (as we have seen with Willis), they will very likely do little to affect Instagram's policies. Legally, by signing up for and using Instagram, users inherently agree to abide by Instagram's rules (with or without clicking a formal "I agree" button).
The legally-minded among us may liken the community standards that come hand in hand with the downloadable photo and video-sharing and social networking app to a type of shrink-wrap license of sorts. Or better yet, a browse-wrap license, an Internet law term that refers to the terms covering access to or use of materials on a web site or downloadable product. In this case, it appears that Instagram's terms obviously trump users complaints. However, when a policy appears to limit an individual's freedom of expression, everyone starts screaming "First Amendment!" So, what about that?
The regulation of online speech comes from two types of entities: companies and governments. Online service providers like Instagram and Facebook arbitrate speech on their platforms. The first point of interest is that individuals willing sign up for social media services, like Instagram. No one is forcing you to use it and so, being subject to that service's guidelines seems like a stretch in terms of a claim for a violation of a Constitutional right. There is also a Federal law, the Communications Decency Act, which has been gaining popularity, so to speak, following the lawsuit involving TheDirty.com, which to some extent, allows social media sites (and other sites with user-generated content) to regulate that content with their own community guidelines.
With those quick points in mind, we likely don't have to delve deeper into this issue as it doesn't appear that Scout Willis or Rihanna are planning to slap Instagram with a First Amendment violation suit. But more to come, maybe …