Employee photos and data protection: What is allowed!
Protect your employees' privacy
Employee photos and data protection: What is allowed!
Companies often use images or videos of employees for their websites or social media channels. Whether it's about festive Christmas parties, successful company runs or training videos - the company's own employees are often used. However, publication is not always in the interest of the people depicted.
Without a legal basis, the use of the image material is not permitted, and data protection violations can lead to claims for damages. An example: The State Labor Court (LAG) of Baden-Württemberg ordered an employer to pay 10,000 euros to a former employee because the employee was no longer allowed to use his images and videos for advertising after the employment relationship ended.
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Consent for publication required
- What should companies consider when publishing employee photos?
- According to the Art Copyright Act (KUG), images may only be distributed or shown publicly with the consent of the persons depicted.
- However, there are exceptions according to Section 23 KUG, including:
- Pictures with historical value,
- Photos from major events,
- Photographs in which people appear only as accessories.
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3Data protection for photo and video recordings of employees
When taking photos or videos of employees in a company context, strict data protection regulations must be observed. These recordings are considered personal data and therefore fall under the provisions of the General Data Protection Regulation (GDPR).
The question of whether the GDPR overrides the provisions of the Art Copyright Act (KUG) has been the subject of intense debate since the GDPR came into force. Employees are increasingly filing complaints about data protection violations under Art. 82 Para. 1 GDPR.
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Important aspects for employers are:
Stricter data protection requirements: Employee photos should only be published in compliance with the GDPR. Employee consent is generally required.
Permission required according to Art. 6 GDPR: Publication is only permitted if consent has been given or if the legitimate interest of the employer prevails according to Art. 6 Para. 1 GDPR.
Legitimate interest: Consent must be given clearly and in writing. A legitimate interest may exist, but must be weighed up on a case-by-case basis.
Exceptions according to Section 23 KUG: In certain cases, such as when people only appear as accessories, no consent is necessary.
By complying with these legal requirements, companies can ensure that they avoid data breaches and minimize legal risks.
Consent to the publication of employee photos: Important information for employers
If an employee is recognizable in a photo, prior consent is usually required in accordance with data protection law. This consent is subject to strict requirements:
- Voluntariness:
Consent is only valid if it is given voluntarily. In the employment relationship, this means that the employee has a real choice and does not have to fear negative consequences if he or she refuses consent. - Prior consent:
Consent must be obtained before publication. It can be recorded either in the employment contract or in a separate contract. - Written consent:
According to Section 26 Paragraph 2 Sentence 3 GDPR, consent should be documented in writing. - Information obligations:
According to Sections 13 and 14 of the GDPR, the employer has comprehensive information obligations. Employees must be informed exactly where and in what context the images will be published. - Right of withdrawal:
Employees must be informed that they can revoke their consent at any time (Article 7, paragraph 3 GDPR). After revocation, the images must be removed immediately.
Avoid high claims for damages and consult an employment law attorney. We will be happy to help you with all data protection issues!
Deterrent effect of compensation for data protection violations
When publishing photos or videos of employees, employers must strictly adhere to data protection requirements, otherwise they risk claims for damages. When determining non-material damages, courts take into account all relevant circumstances of the individual case and ensure that effective legal protection of the rights derived from the GDPR is guaranteed.
Compensation for data protection violations is intended to have a deterrent effect in order to enforce the General Data Protection Regulation (GDPR). Previous decisions show that courts take data protection violations seriously and punish them consistently.
Lawyer & Partner
Dr. Marco Rogert
Deleting employee photos
Once consent has been given, photos of employees may be used until the employee revokes their consent. This revocation can occur at any time and does not happen automatically when the employment relationship ends. The former employee must expressly declare the revocation.
If the company refuses to remove the photos, this must be resolved in court. A court will then weigh the interests of the employer and the employee against each other. The decisive factor is how the employee is portrayed in the respective photo.
- Accessory or neutral activity:
If the employee only appears as an accessory in the photo or is shown performing a neutral activity (e.g. on the computer or on the phone), there is a good chance that the employer's interest prevails and further use of the photo is permissible. - Special expertise:
If the photo conveys a particular expertise of the employee and gives the impression that he or she is still working for the company, the photo will most likely have to be deleted.
Would you like to have your photo deleted? Contact our employment law attorneys! We will support you in enforcing your personal rights!
Photos of employees and data protection: your experts in employment law
Advice for employers:
- Obtain legally secure consent
- Data protection-compliant publication
- protection against claims for damages
Advice for employees:
- Rights when using photos
- compensation for data protection violations
- defending your privacy
Why choose us?
- Experience and expertise: Our lawyers have extensive experience in employment law and specialize in employee data protection.
- Individual advice: We offer customized solutions tailored to your specific needs.
- Comprehensive service: Whether you are an employer or an employee, we accompany you in all phases of legal advice and representation.
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