Introduction
Terms of use form the contractual foundation between a platform and its users, most often in the form of a contract of adhesion accepted without negotiation. The difficulty arises when the platform modifies these rules after registration, particularly on sensitive issues such as the exploitation of content, the visibility of posts, or remedies in the event of suspension.
The case Rodriguez v. Instagram, LLC (Superior Court of California, County of San Francisco, No. CGC-13-532875, February 28, 2014) raises the question of whether consent may be inferred simply from the continued use of the application. More than ten years later, the answer is nuanced: while continued use may amount to tacit acceptance, platforms are now subject to enhanced transparency requirements, particularly in Europe under the GDPR and the DSA.
The facts: Instagram’s modification of its terms of use
In December 2012, Instagram announced a modification of its terms of use in a sensitive context: having been acquired by Facebook a few months earlier, the social network was at the centre of debates concerning the risk of commercial exploitation of published content.
These new terms of use caused serious concern: some users feared that Instagram could exploit their photographs and account information for advertising purposes, without remuneration or authorisation. The issue was all the more significant as these platforms rely heavily on content created by users.
Instagram provided for the new terms to enter into force after a notice period: users could, in theory, refuse the new rules by ceasing to use the service, with continued use constituting acceptance.
A user challenged this mechanism, arguing that the terms had been imposed without genuine consent, and brought proceedings against Instagram, notably on contractual grounds. The case raised a central question: is continued use alone sufficient to characterise acceptance of the new terms of use?
The decision: no contractual liability on Instagram’s part
The California Superior Court dismissed the claims brought against Instagram: the user had been able to review the new terms, could have refused them by ceasing to use the service, and nevertheless continued to use it after they entered into force.
This continued use was therefore analysed as tacit acceptance of the new provisions.
The Court also rejected the idea that Instagram had breached its obligations merely by modifying its terms of use: the change was not wrongful in itself; what mattered was the way in which it was provided for, notified, and made enforceable.
Favourable to platforms, the decision confirms that a social network may amend its terms, provided that this possibility was initially provided for and that the user is informed before the amendments enter into force.
The scope of the decision: a flexible solution, but one that must be put into perspective
Delivered in 2014, the decision in Rodriguez v. Instagram LLC illustrates a flexible approach to the modification of terms of use. The Court accepted that a user may be bound by new terms when they have been informed of their entry into force and continue to use the service.
This solution follows a practical logic: digital platforms evolve rapidly, and their functionalities, business models, and moderation rules must be regularly adapted.
The scope of this decision must nevertheless be put into perspective. First, it was delivered in a U.S. legal context and cannot be automatically transposed into French or European law. Second, it is based on a debatable idea: that the user always has a real possibility of refusing the new terms of use by leaving the service.
However, this freedom is sometimes theoretical. For an individual, leaving a platform may mean losing access to a social network that has become central to their digital life. For a creator, trademark, or company, it may result in a loss of visibility, customers, or access to a professional community. This dependence may therefore weaken the idea of fully free consent.
The decision nonetheless remains important: it shows that the enforceability of new terms of use does not depend solely on the existence of an amendment clause, but also on the concrete conditions under which the user is informed and placed in a position to understand the implications of the change.
The implications today: the DSA strengthens transparency in terms of use
Since the Instagram case, the European legal framework has evolved significantly. The Digital Services Act, applicable since February 17, 2024, strengthens the obligations of digital platforms. It does not prohibit the modification of terms of use, but it changes their function: general terms and conditions are no longer merely a contractual document; they also become an instrument of regulated transparency.
Article 14 of the DSA requires providers of intermediary services to present their terms and conditions in clear, plain, intelligible, user-friendly, and unambiguous language. These terms must in particular specify the restrictions that the platform may impose on the use of the service, especially with regard to content moderation, account suspension, limitation of visibility, or removal of posts.
For very large online platforms and very large online search engines, the requirements are reinforced. They must in particular provide a clear, concise, accessible, and easily readable summary of their terms and conditions, including the available remedies. This requirement is essential: the user must not only be informed of the existence of the terms of use; they must also be able to understand their practical consequences.
Accordingly, a modification of the terms of use concerning moderation, recommender systems, content visibility, or internal remedies can no longer be viewed as a mere contractual update. It may now be assessed in light of the transparency obligations imposed by the DSA.
The GDPR: when the modification concerns personal data
The GDPR also strengthens the framework governing modifications to terms of use when they affect the processing of personal data. A platform cannot simply announce a general modification of its terms if that modification affects the data collected, the purposes of processing, recipients, retention periods, or legal bases relied upon.
Where processing is based on consent, that consent must be freely given, specific, informed, and unambiguous. Continued use of the service alone will therefore not always be sufficient to characterise valid consent, particularly if the user has not received clear information about the scope of the processing. Even where the platform relies on another legal basis, such as performance of a contract or legitimate interest, it remains subject to a transparency obligation.
The modification of terms of use must therefore be distinguished from the modification of rules applicable to personal data. A contractual clause cannot, by itself, neutralise the specific requirements of data protection law.
Published content: a copyright issue
Modifications to terms of use may also raise copyright issues. Users generally remain the holders of the rights in the content they publish, but they usually grant the platform a licence to use that content, enabling it to host, display, and distribute it.
A modification of the terms of use that would broaden this licence, in particular to advertising or commercial uses, or to exploitation outside the platform, must therefore be examined carefully. The issue is particularly important for creators, photographers, influencers, brands, and companies, whose published content may constitute genuine intangible assets.
Unfair terms and published content
Under French law, the terms of use of social networks may also be examined in light of the law on unfair terms when they apply to consumers. A clause allowing a platform to modify its obligations unilaterally and extensively, without sufficient information or any real possibility for the user to understand the consequences of the change, could be challenged if it creates a significant imbalance to the detriment of the user.
Modifications relating to published content call for particular vigilance. Users remain the holders of copyright in the works they publish, but they generally grant the platform a licence to use those works in order to enable the hosting, display, technical reproduction, or dissemination of the content. A modification of the terms of use that would extend this licence to new uses, for example advertising, commercial, automated, or off-platform uses, must be examined carefully.
For creators and professionals , these modifications may have concrete consequences for the control of their intangible assets. It is therefore essential to archive successive versions of the terms of use, identify the clauses relating to published content, and verify whether the rights granted remain proportionate to the normal use of the service.
Conclusion
The Rodriguez v. Instagram LLC case remains an important decision for understanding the contractual logic of social networks. It shows that a platform may, under certain conditions, modify its terms of use and make those modifications enforceable against users who continue to use the service after notification.
However, this platform-friendly solution must now be strongly qualified. In Europe, the GDPR, the DSA, the law on unfair terms, and copyright law require a more demanding analysis. Terms of use are no longer merely a document that the user accepts upon registration: they govern access to the digital space, content visibility, moderation, remedies, and the exploitation of intangible assets.
For users, and even more so for companies, creators, and rights holders, a modification to a social network’s terms of use should therefore never be treated as a mere formality. It may have direct consequences for control over content, data protection, online visibility, and digital strategy.
Dreyfus law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.
Nathalie Dreyfus with the support of the entire Dreyfus team.
Q&A
1. Do all modifications of terms of service have the same scope?
No, a simple technical update does not carry the same importance as a modification concerning personal data, published content, moderation, or account suspension.
2. Does posting content on social media mean assigning your copyright?
The user remains the holder of their rights. However, they generally grant the platform a license to use their content.
3. Why should you pay attention to this license?
Because it may authorize the platform to reproduce, distribute, adapt, or exploit the content. Its duration, territory, purpose, and extent must be examined with care.
4. Can we really speak of consent when the user has no choice but to accept or leave the platform?
This is the whole difficulty of platform contracts. The user theoretically has a choice, but that choice can be highly constrained when the platform has become indispensable to their activity, their visibility, or their relationship with their clients. This dependence does not automatically render the terms of service unlawful, but it may weigh in the analysis of their balance and enforceability.
5. Are professional creators less protected than consumers?
Often, yes. The consumer can more easily invoke the law on unfair terms. The professional creator, the influencer, or the company will instead have to reason in terms of evidence, validity of the license, contractual imbalance, economic dependence, or harm to their intangible assets. Protection exists, but it is generally less automatic.
The purpose of this publication is to provide general guidance to the public and to highlight certain issues. It is not intended to apply to particular situations or to constitute legal advice