Picture it: you just bought a miraculous new night cream, or a killer new cleanser. You might post about it on social media. You might even tag or hashtag the brand. You’re excited, and want your followers to see your rocking new glow. Now imagine: you’re scrolling through your feed, and see yourself featured in a revenue-generating ad by that brand. You’d be a little disconcerted, right?
You may think it’s an innocent hashtag, but you may unwittingly be granting permission for use of your content. Big brands are increasingly sourcing content from customers in a bid to drive up sales, and it’s catching some users off-guard. Instagram beauty blogger Valeria shared the unnerving experience of seeing her own image used in a Facebook ad. Having posted about beauty brand 100% Pure, she didn’t realize use of the hashtag constituted consent:
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✨Facebook AD with my face on it?✨ . Today I wanted to tell you a story of how I saw a Facebook AD with MY face on it 👩🏻💻 . ❌Sometime last year, I was casually scrolling through my Facebook feed, when I saw an AD placement by @100percentpure 👋 This AD, and I’m sure you guessed it by now – had my face on it. To say that I was surprised is most certainly an understatement as I didn’t recall ever signing a modeling contract with the brand ha! I immediately went to the 100% Pure website and after some digging, at the bottom of a product page I saw this statement: . “By using hashtag #100percentpure or #nodirtybeauty, I hereby grant to 100% PURE (Purity Cosmetics), it subsidiaries, agents and affiliates, the unlimited worldwide, perpetual, unending right to use, reproduce, distribute, and convey my image/photograph in any …” (SWIPE RIGHT for the full disclaimer) . ❓A few thoughts came to my mind: 1. “Is this legal?” 2. “Do other brands do this too?” and MOST IMPORTANTLY 3. “Do other people who use these hashtags know about the disclaimer?” . ⁉️I still don’t know the answer to the first two questions and I’m posting here today to ask YOU the 3d question! . ❗️I also want to state that: a) in my opinion this practice is unethical b) brands should reach out individually and receive written consent for repost and most certainly for image use for commercial purposes (ads etc.) and c) I DID NOT consent to @100percentpure to repost pictures of MY face to use for commercial use. I SIMPLY couldn’t consent to something that I was not aware of. (Please swipe right to see the imagery of me used on 100% Pure website that I did not consent to) . ⚠️Lastly, I want to add that I greatly respect 100% Pure as a brand. I think both their mission statement and their products are amazing. However, I do not think reposting photos of individuals for commercial purposes by “assumed content” is appropriate. . 💭 So as stated earlier, my question to you today is: If you ever used their hashtags, did you know that it meant you gave them “unending right to use, reproduce, distribute, and convey my photograph”? While we’re on this topic, do you find this practice ethical? Lmk 🐝
After digging around, she found the following clause in their Terms & Conditions, declaring “By using hashtag #100percentpure… I hereby grant… the unlimited worldwide, perpetual, unending right to use, reproduce, distribute, and convey my image/photograph in any format or medium…,”… you get the picture. Which got her wondering, is this common practice? And before you wonder if this is legal – it seems like it is, but let’s be honest, who scrutinizes T&Cs in that much depth? All of which raises an interesting question, because as Valeria said, “I… couldn’t consent to something that I was not aware of.”
With the lines between testimonials, public shareable content (social media is for sharing, after all), and actual ads, like paid sponsorship content, becoming increasingly blurred, this is new territory for brands and consumers alike. Sure, you may want to rave about an amazing new product, but that doesn’t mean you want to be an unpaid brand salesperson. There’s a fine line between brands reposting your content on their Instagram Stories which crucially, disappear, and them reposting on their channels, to commercial ends.
So unsurprisingly, brands come out on top, saving on the cost of paid ads, whilst benefiting from the air of ‘authenticity’ of user content, likening it to the power of word-of-mouth. And it’s making customers more than a little uncomfortable. Anonymous beauty collective, Estée Laundry, called out the practice on its Instagram Stories overnight, noting the terms of brands like Urban Decay, which states any content which tags or hashtags their campaigns, implicitly gives them “a worldwide, royalty-free, non-exclusive, transferable right to use your video(s), photo(s) and/or other content posted online (e.g. Instagram, Facebook, Twitter, or other platform) in addition to those you have tagged with any of Our brands’ campaign hashtag together with your social media handle, social media user name, profile picture, caption and location information you may have included in your content in any media.”
The ever popular Glossier, who have a huge social media presence, have some interesting T&Cs on their site as well: “The Site may pull content from our users who share photos and videos on Instagram using our brand hashtags, including, without limitation, #glossier, #glossierplay, #glossierpink, #boybrow, #maskforce, #nofilterjustglossier, #skinfirstmakeupsecond or #itgtopshelfie (collectively, the “Glossier Hashtags”), or tagging the @Glossier, @GlossierPlay or @IntoTheGloss accounts (collectively, “Photos”). You acknowledge and agree that the Photos may be used in Glossier’s showroom space, retail locations and emails and on the Site, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your Account or the Services.” Sheesh.
And while some brands explicitly request permission for reposting content, if they don’t, you wouldn’t presume to check. British Beauty Blogger Jane Cunningham, shed light on this emerging marketing strategy, saying it’s “not unusual across channels, particularly Instagram, for a brand to send a generic ‘hey, we love your image – respond YES if you are happy for us to use it on our channels.’” But noted that while some users were grateful for the exposure (hoping it might lead to paid partnerships), these interactions are “entirely in the brand’s favour.” So it seems like a pretty one-sided deal.
In the EU, new rules guarding data protection kicked in last spring, meaning for collection of personal data (such as on a social media post), consent would have to be explicitly sought, with an option for later opt-out (similar to when you see an ‘Unsubscribe’ button at the bottom of an email). But as of yet, no such equivalent exists in North America. In this age of sharing and broadcasting, it’s worth knowing where your data’s going, what can be done, and by whom, with your personal content. So for now – we might just stick to in-person recommendations.