Current trends in social media: business owners are increasingly featuring their employees in advertisements for the goods and services they sell.
A side effect of this trend is that, after the termination of their employment contract, employees typically do not want themselves and their image associated with a particular company and its products, and therefore demand that all advertisements be removed from social networks and no longer used in the future. Can employers protect themselves against such demands from employees? Mantas Baigys, attorney at law and personal data law expert at AVOCAD, answers.
Under the Civil Code, a photograph (part of a photograph), portrait or other image of a natural person may be reproduced, sold, displayed, printed, or photographed only with the person's consent. Consent may be given orally, in writing or by implication.
According to the lawyer, neither the Labour Code nor any other legislation prohibits an employee from agreeing with the employer on the use of his/her image to advertise his/her goods and services on social networks.
“One of the essential terms that must be agreed upon by the employer and the employee is the duration of the use of the image, which must be assessed and discussed. In a legal situation where a person has voluntarily consented to the use of their image for commercial purposes and the duration of such use was not specified in the contract, the person’s right to their image is protected on the grounds that this right is part of the right to privacy,” notes the lawyer.
When two legal goods - the right to respect for private life in the context of image protection and the employer's proprietary interests in the advertising of its services and goods - collide, the protection of the individual's right to privacy must be given priority.
For these reasons, if the employee and the employer have not agreed on a time limit for the use of the image, the employee will normally have the right to withdraw his or her consent (which may be withdrawn during the term of the employment contract) to the use of his or her image in the employer's advertisements after the termination of the contract.
A key piece of advice from Mantas Baigis is that the agreement with the employee on the use of his/her image in advertisements, while discussing all the necessary conditions, must also clearly agree on the term of use of the image (e.g. how the image will be used after the end of the employment relationship).
“If such terms are not specified—in line with the latest trends in case law—employers will be required to remove all advertisements from social media and may be required to compensate the employee for all pecuniary and non-pecuniary damages suffered,” the lawyer points out.
“The issue of the legality of image use may also be investigated by the State Data Protection Inspectorate for violations of the General Data Protection Regulation resulting from the improper processing of employees’ personal data, and if violations are found, the company could face massive fines,” says Mantas Baigys.