[georgemcbay]

Having it be a baby confuses the issue because babies can't give consent, but if someone took a picture of you and you're not an instagram user and thus never agreed to their TOS and that photo is used for commercial advertising you'd have a very strong case to sue in many places of the world.

Using the identifiable image of a person (even a private non-celebrity) in a non-editorial commercial manner is not permitted in most places, especially (bur not only) if the photo was taken in a place where there is an implied right to privacy (someone's home, etc, rather than outside in public). This is why photographers are anal about making sure all people who are identifiable in their photos sign a model release form if they plan to sell the photo for non-editorial uses.

If instagram ran this idea by their lawyers I'm sure they've been informed that they should absolutely never use any of these images for advertising if there is an identifiable person in it because otherwise the risk of being sued for it eventually is far too great.