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Can Instagram take your profile from you?

Posted by , Solicitor
Contributing authors: Charlotte Ebbutt and Stephen Welfare

For many people their social media account is something that can feel intimately personal. You may have poured hours into gaining followers, or you may use it to quietly keep up to date with world events.  But whatever the level of engagement, the bottom line is that like your phone number or email address, your username is yours, right?

Well, maybe not. The case of the @SussexRoyal being taken from its ‘owner’ – Kevin Keiley, a driving instructor and Reading FC fan – and given over to Harry and Megan , the Duke and Duchess of Sussex, is well documented.

But are they even allowed to do this? And what are your legal rights if it happens to you?

Can a social media platform take away your account and give it to someone else?

There are many different social media accounts, but as this particular case involves Instagram we have chosen to focus of that platform. The simple answer to this is yes. As evidenced by the @SussexRoyal case.

Lucy Nash, a solicitor who specialises in Dispute Resolution comments that ‘Instagram reserves the right to change usernames if it believes it is “appropriate or necessary”. We are not in a position to know the discussions that took place between Instagram and the Royal Family so cannot comment on why they deemed it appropriate or necessary, but the terms appear wide enough to allow them to use their discretion in certain circumstances.

Instagram says Kevin Keiley’s handle was changed because his account was inactive and as such, it had been changed in line with its policy. Mr Keiley has admitted that he didn’t have that many followers and didn’t post very often, but he did use the account to follow and like other people’s posts.’

So it would seem that the lack of activity on Mr Keiley’s account was one of the reasons why this decision was made. But the exact amount of activity he would have needed to have done to protect his account is unclear.

So if he was more active or had more followers it wouldn’t have happened to him?

‘If the handle had been associated with an Instagram Influencer or a well-known brand, for example, then the factors in determining whether it would be appropriate or necessary to change the handle may have been different.’ Lucy Nash said.

So, for example it was an account that was generating significant ad revenue for the platform, then the cynical view would be that it would be less likely, or that a transactional exchange may have taken place.

@SussexRoyal

Mr Keiley has lost the opportunity to sell his Instagram handle for profit. Does he have a potential claim?

Although it does happen in private exchanges, Instagram have a clear policy on this which does not allow you to sell accounts.

‘Although buying and selling social media accounts has become increasingly popular over recent years, especially those that generate significant traffic, Instagram’s terms are clear that users cannot attempt to buy, sell, or transfer any aspect of their account (including usernames).’ Lucy Nash said.

This may strike many as hypocritical, because ‘transferring’ is exactly what Instagram has done, however this policy applies to the user of the account and not the platform itself.

With regards to any loss or compensation Stephen Welfare, an expert Intellectual Property lawyer adds that ‘The images posted to Instagram are not owned by Instagram but the maker of the images and then to whoever they are assigned as appropriate as a matter of copyright law. Unless there has been an appropriation or use made of the images there is no claim.

In terms of the loss of the Instagram account entitling a party to bring a claim, that would depend upon him being able to establish a commercial goodwill attached to the Instagram account. In this case it seems almost certainly not.’

So what does this mean for the new @SussexRoyal account? Have they made a mistake taking this account off a member of the public?

The court of public opinion seems divided on this one. In one camp a shared Instagram account for the Royal couple has whipped up loyal excitement. After all, it was the fastest growing Instagram account ever, gaining one million followers in record time.

It could easily be claimed however that Kensington House and Instagram have worked together to bend the rules and get what they want. Something that the vast majority of people would never be able to do.

Charlotte Ebbutt, Technology and Media lawyer said, ‘There could still be reputational issues for both Instagram and the Royal Family. The Royal Family may be seen to be using their influence and standing to take advantage in a way in which the ordinary user would not be able to, which may account for some of the negative comments that have arisen as a result of this story.’

 

Only time will tell how this will unfold, will Instagram make a u-turn? Will the new owners of the @SussexRoyal account publically acknowledge what has taken place? The example of the @JohnLewis twitter account sprigs to mind as a way for brands and individuals to exist in the same space. In time this may be an opportunity missed.

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