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A lot of the commentary here refers to Instagram as an omniscient "they" — as if Instagram is a group of people carefully coordinating terms of use edits. In t

A lot of the commentary here refers to Instagram as an omniscient "they" — as if Instagram is a group of people carefully coordinating terms of use edits. In the vast majority of websites, this isn't how it goes down. Here's the usual process that I've seen: * Product (or Sales) will ask if they have the right to do something (now or in the future). No one is sure, and the issue is eventually bounced to Legal. * Legal eventually tells them that the answer is no (or that it's unclear), and that the Terms will have to be edited to give 100% permission. * Legal then goes ahead and proposes edits to the terms or privacy policy. Because they are lawyers, they focus on giving the website the absolute broadest possible permission. At no point is the Marketing or Communications team informed or consulted. * Legal then coordinates with Product, and the changes are rolled out at the same time as (or shortly before) the product changes go live. Then either users simply don't care, or they do and then this happens: * Users spot the changes and freak out. * The Marketing and Communications freak out as well, and hear about the changes (often for the first time). * The Terms of Use are revised again, so that they more clearly communicate their original intent. Users either decide they still trust you, or they decide that the trust has been breached and look for alternatives. I have seen this happen again and again. Very rarely is the website actively trying to screw their users. Much much more often, the real culprit is a lack of communication between the Legal and PR/Communications team. It is absolutely critical that your General Counsel be on good terms with your head of PR (and that your head of PR/Comm is friendly with your head of Product). If that's the case, then these issues tend not to crop up. If not, then they tend to explode very publicly and violently on the entire company. The #1 thing you can do to avoid these issues is to treat edits to the Privacy Policy and Terms of Use as a major communications effort, and make sure that all changes are vetted with an internal advocate for your users (ideally, your Comm team is led by such a person). Otherwise, you could be headed for a blowup very similar to this one.

jsankey 14y ago
I'm not saying you're wrong, in fact I'm quite sure you're right in how things often happen. However, for a service like Instagram, the ToS are a critical part of the business. Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards, but the strategy should be coming from the top, and the responsibility should rest there.
- kanamekun 14y ago
  "Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards" That's actually the sort of compartmentalization that creates these problems. "Whoever sets the overall strategy for the product" = the head of Product or the Product Manager for a specific feature. This person rarely has any legal or communications experience. If the legal team's job is just to "encode" what product wants, then that's actually where the problem starts. The only real solution here is for Product, Legal and Communications to work together from the beginning. The product feature should be designed with Legal and Comm concerns in mind. Otherwise, the danger is that you'll end up exposed to exactly the sort of snafu that Instagram experienced here.
  - jsankey 14y ago
    I'm not arguing for compartmentalisation, nor against the importance of all the teams you are talking about working together. There would absolutely need to be back and forth between legal and product as part of the encoding I am talking about, for example. But it seems to me that if this was happening at even a basic level, then whoever is in charge of the product at Instagram must have known they were adding some pretty onerous terms. And if they didn't, it's a pretty massive failure to take the ToS seriously. Neither option inspires confidence in a service that people provide with important data.
    - teaneedz 14y ago
      Really good points. Product is ultimately responsible for the user experience. The PM or head of product may not be a legal expert, but they better be an expert in knowing their users. Stakeholders signed off on the ToS or ToU. Each bears responsibility. However, Product is directly responsible for the outcome which is why a strong voice is needed - one that can say, "No Way!" when necessary. Of course, if the decision is made higher up the chain, then this just supports how deliberate the ToS change was - deliberate and worded exactly as it was intended. The wording was definitely unique enough that someone knew what was being asked for - legal expert or not - it was pretty clear.

jsankey 14y ago

I'm not saying you're wrong, in fact I'm quite sure you're right in how things often happen. However, for a service like Instagram, the ToS are a critical part of the business. Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards, but the strategy should be coming from the top, and the responsibility should rest there.

kanamekun 14y ago
"Any changes made to the terms should be known, understood, and agreed on by whoever sets the overall strategy for the product. The legal team helps them encode it, marketing and PR help them communicate it outwards" That's actually the sort of compartmentalization that creates these problems. "Whoever sets the overall strategy for the product" = the head of Product or the Product Manager for a specific feature. This person rarely has any legal or communications experience. If the legal team's job is just to "encode" what product wants, then that's actually where the problem starts. The only real solution here is for Product, Legal and Communications to work together from the beginning. The product feature should be designed with Legal and Comm concerns in mind. Otherwise, the danger is that you'll end up exposed to exactly the sort of snafu that Instagram experienced here.
- jsankey 14y ago
  I'm not arguing for compartmentalisation, nor against the importance of all the teams you are talking about working together. There would absolutely need to be back and forth between legal and product as part of the encoding I am talking about, for example. But it seems to me that if this was happening at even a basic level, then whoever is in charge of the product at Instagram must have known they were adding some pretty onerous terms. And if they didn't, it's a pretty massive failure to take the ToS seriously. Neither option inspires confidence in a service that people provide with important data.
  - teaneedz 14y ago
    Really good points. Product is ultimately responsible for the user experience. The PM or head of product may not be a legal expert, but they better be an expert in knowing their users. Stakeholders signed off on the ToS or ToU. Each bears responsibility. However, Product is directly responsible for the outcome which is why a strong voice is needed - one that can say, "No Way!" when necessary. Of course, if the decision is made higher up the chain, then this just supports how deliberate the ToS change was - deliberate and worded exactly as it was intended. The wording was definitely unique enough that someone knew what was being asked for - legal expert or not - it was pretty clear.