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Instagram: A Study in Anticipatory Breach of Contract in New York

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In a recent filing, a user of the popular app Instagram filed a class action lawsuit alleging that by changing the terms of service, the app’s owner, Facebook, committed a breach of contract. The changes to the terms of service contain provisions that some users allege are in breach of the original terms of service they agreed to when signing up for the app. One example is a new provision that says individuals who cancel their account forfeit any rights they had to photos that were previously taken and shared on Instagram.

Since the changes to the terms of service are so new, it is likely that the lawsuit has been filed before any pictures by former users were used by Instagram in accordance with the new rules. Under New York contract law, this would be referred to as an anticipatory breach of contract. The user of the program alleges that if the company exercises the right to use the photos of a former member under the new terms of service, then it is in breach of the agreement originally established. The plaintiffs argue that they have reason to believe that Instagram will renege on its end of the deal, the original terms of service.

What are the options if faced with an anticipatory breach of contract in New York? There are two, as follows:

  1. Consider the other party in breach of the contract (which, in essence, terminates your responsibilities with regard to the contract)
  2. Continue to carry out your part of the agreement and try to hold the other party responsible for its end of the complete contract

To learn more about anticipatory breach of contract, contact an experienced New York business litigation lawyer today for more information. Call our office at (888) 497-3410 for a free consultation.

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