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Data protection and employee photos (in Germany)
A company brochure only truly comes to life with photos. Brochures with text and graphics alone are quite boring. In a corporate Intranet, it makes a good impression on other colleagues when the entire department has also included a picture with their contact information. The web presence is far more inviting when potential customers see that they are dealing with people. So it is no wonder that supervisors like to motivate their employees to ‘show face’ for the company.
In the age of digital data transmission, where images can be duplicated, altered and sent via the Internet to the general public with minimal effort, extra caution and care must be taken in dealing with employee photos. German legislation protects the right to self-determination in connection with images/pictures via several laws.
The most important principle is that any use of employee photos requires the express consent of the respective employee. The Art Copyright Act [Kunsturheberrechtsgesetz (KunstUrhG)] unequivocally states, ‘portraits may only be distributed or put on public display with the consent of the person portrayed.’
What must be considered when creating images of employees?
The express consent of the employee is required for the production of a photograph. This has resulted from current case law on KunstUrhG (in German) and under certain circumstances also from the Criminal Code [Strafgesetzbuch]; § 201a (in German) stipulates that taking unauthorized pictures of people in a protected area or the unauthorized distribution thereof is punishable with a fine or imprisonment up to one year.
This makes the following clear: if you secretly take photos of people or have them made, you’re on very thin ice. Taking pictures of people at their workplace without their knowledge should be taboo anyway. However, even at corporate parties and events, you can protect yourself by ensuring that the people photographed consciously perceive that they are being photographed. If someone smiles at the camera, he or she is indicating consent to being photographed, at least in that moment. However, the implied consent to being photographed does not indicate consent for what may be done with this photo in the future.
The consent of employees to use their pictures
For use or dissemination of pictures, this again requires explicit consent to the respective purpose, which also applies to photos that an employee has voluntarily given to the company. An application photo attached to a CV, for example, must not be displayed on the employee’s profile page on the intranet without the express consent of that employee because the unwanted distribution of photos of an individual is a particularly serious violation of personal rights and also the special requirements of the declaration of consent yet to be issued by the employee.
- Consent must be voluntary. If pressure was applied by the supervisor or if the employee was under peer pressure from colleagues, the declaration of consent is invalid.
- Formulate the purpose of the consent as precisely as possible. A declaration that is too broad, such as ‘The company may use pictures of the employee for its own purposes’ can be easily disputed. If it was not unmistakeably clear to the employee concerned what exactly was intended for the pictures, deliberate and explicit consent may not be assumed.
- Be sure to settle the issue of compensation as well. Even when the employee agrees to the use of his or her photographs free of charge, “without compensation/remuneration” should be noted in the declaration of consent.
- For minors, personal consent alone will not suffice. The guardian must be involved in the declaration of consent.
- It should also be noted that given consent does not apply forever. Employees may revoke their declaration of consent at any time.
What happens to the photos of former employees?
When employees leave the company and do not want their photos or other personal information used on the Internet site of the employer or in other media, the employer must fulfil this wish for data protection reasons alone. This applies not only to images that were used to present the employee, but also to those that were used for decorative purposes on the website free of charge.
The photographer also has rights
With photographs, not only the personal rights of the portrayed person must be considered, but also the copyright of the photographer. When employees explicitly have application photos made, they can use them for the stipulated purpose. If the employer would like to use this photo for the presentation of the employee on the website, the employer must also negotiate the usage rights with the photographer. Otherwise, the copyright owner can make claims for damages.
The experts at activeMind AG gladly consult you on all matters of operational data protection and create the necessary documents for you. Upon request, we manage all legal, organizational and technical aspects of data protection in your company as external data protection officers.