Employer is Allowed to Continue Using the Dismissed Employee’s Portrait for Promotional Purposes

An employee who had summarily been dismissed could not oppose the employer’s post-dismissal continued use of photos and a video showing him. The portrait rights were not infringed because the employee had given his permission for the use of the photos and the video. Using the photos and video did mean that the employer processed personal data of the employee's, but he had a legal basis for doing so because the employer's legitimate interest in promoting its products and services justified the infringement of the employee’s personal privacy.

A large online retail company with its own delivery service employed an employee, whose employment contract included the employer’s permission to use the employee’s portrait for promotional purposes. This agreement had been made during the first employment contract, which had been entered into for a period of seven months. This agreement was later extended for an eight months period and then settled for an indefinite period of time. It had been confirmed in writing that the applicable terms of employment would continue to apply. With the employee’s permission there were photo shoots of the employee, intended to be printed on a hundred delivery vans, but eventually used for thirty-six delivery vans only. The employee had also acted, with his consent, in a promotional video for new electric powered delivery vans, which video had been posted on YouTube.

After the employee had summarily been dismissed and after the Sub-district Court had confirmed the legal validity of the dismissal, the employee claimed that the employer should discontinue using his portrait and that he should pay an amount of EUR 25,000 in damages. According to the employee, the employer infringed his portrait right because the employee had not given his explicit permission to use this portrait right. He also accused the employer for processing his personal data in violation of the General Data Protection Regulation (GDPR).
In the Sub-district Court’s ruling on this claim in summary proceedings, it first and foremost stated that the law provides the right to oppose publication to any person whose portrait is displayed without his/her instructions if he/she has a reasonable interest to do so. If however, permission was given for publication of the image, the employee has waived this right. In principle, the consent should be given expressly, but implicit consent may suffice. Whether consent was given or not should, according to the Sub-district Court, be assessed, on the basis of general contract law, which means that it comes down to the significance that the parties could reasonably mutually attribute to each other's statements and actions in the given circumstances.
The Sub-district Court decided that the employee had both explicitly and implicitly given his consent for using the photos and video taken. The explicit permission was apparent from the employment contract entered into and its extensions, whereby the Sub-district Court disregarded the fact that the employee had never signed the latest confirmation. The implicit permission was apparent from his cooperation in the photo shoot and the video recording, of which the employee knew what they were intended for, and to which he did not object until after the summary dismissal.

The Sub-district Court also rejected the employee's appeal to the GDPR.
Within the meaning of the GDPR, the photos and the video are personal data and, for that reason, the employer should have a legal basis for processing these personal data. The employee’s consent is one of such bases for processing, but this consent should be deemed to have been withdrawn when the employee's attorney requested the employer to remove the visual material. Necessity to satisfy a legitimate interest of the employer can also provide a legal basis for processing personal data, but in that case all interests involved should be weighed in order to determine whether or not the fundamental freedoms and rights of the employee, as in this case the respect for personal privacy, do not override the employer’s interests. The Sub-district Court considered that the employer had a commercial interest in promoting its products and services and that the costs for having the portraits removed from the vans would be unreasonably high, whereas a prohibition to use the vans for as long as the portraits were not removed would have a serious impact on the employer's business. Since the employer had already removed the video from YouTube, had promised not to use the portraits for new promotional purposes and to phase out the use of the portraits on the delivery vans, the Sub-district Court decided that there was a justifiably legitimate interest for the infringement of the employee’s privacy.

Very likely, the employer we just wrote about, who is proud to withhold the fact that his staff always have a smile on their face when helping his clients, may have produced a big smile himself after having been informed about the Sub-district Court’s judgement. For sure, it would have been very hard for the employer if he would have had to pay damages to an employee who was summarily dismissed.
There will not be many employers intend to have the portraits of their employees placed on their delivery vans, but using images of employees on the employer's website is quite common in certain industries. Also for this purpose the employer needs a processing basis. The employee's consent is not the most suitable basis for processing personal data. Not only because the given consent be withdrawn at any time, but consent within the meaning of the GDPR only exists if this consent was freely given. The Dutch Data Protection Authority takes the view that an employee can never give this consent freely, because there is always a hierarchical relationship between the employee and the employer. For this reason it would be more effective for the employer to opt for "satisfaction of a legitimate interest" as the processing basis. In that case, however, the interests need to be weighed: how important is the employer's interest in placing an image of the employee on its website and how important is the infringement of the employee's personal privacy? In addition, publication of the employee’s image on the website should also be necessary to satisfy the employer’s legitimate interest.
In the above case, the Sub-district Court did not address the question of whether the publication of the employee’s portrait on the employer's delivery vans was really necessary for the employer's legitimate interest to promote its services and products.