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When Instagram announced a new policy yesterday that seemed to allow advertisers to use people’s photos without their permission, many people asked “can they do that?”  In Missouri, maybe not.

The announced Instagram terms of service stated, “a business or other entity may pay us to display your username, likeness, photos….in connection with paid or sponsored content or promotions, without any compensation to you.”

One of the scenarios where the Missouri Supreme Court has said it may recognize the tort of “false light invasion of privacy,” is “when one uses another’s likeness in connection with a story that has no bearing on the plaintiff.”  Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 480 (Mo. 1986).

So far, there hasn’t been a reported case where the courts have adopted the “false light invasion of privacy,” cause of action for a set of circumstances like those contemplated in the Instagram terms of service.  But if the result of Instagram’s new policy is that advertisers use photographs of people in connection with something that has no bearing on those people, they may just run afoul of Missouri common law.

Missouri Courts didn’t even adopt a false light invasion of privacy cause of action until 2008.  Interestingly, when it did, the Court of Appeals used the Internet as its rationale for recognizing the tort.

 “In recognizing this cause of action, we note that as a result of the accessibility of the internet, the barriers to generating publicity are quickly and inexpensively surmounted. Moreover, the ethical standards regarding the acceptability of certain discourse have been diminished. Thus, as the ability to do harm grows, we believe so must the law’s ability to protect the innocent.”

Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 325 (Mo. Ct. App. 2008)(citations omitted)