Sebastian Hoegl, GesellschaftsrechtStephanie Krüger, Fachanwältin für Arbeitsrecht

Consent to the Publication of Pictures and Employee Data Protection

If an employer wishes to publish pictures of its employees, it is required to obtain their prior written consent. If the consent is given for an indefinite term, then it cannot be readily revoked by the employee. This was the decision of the German Federal Labour Court (Bundesarbeitsgericht – “BAG”) (Docket no. 8 AZR 1010/13) in its recently published judgment dated 11 December 2014.

Background

The suing employee was employed by the defendant until January 2011. In October 2008, the employee had given his written consent to his employer to use film recordings of him for its public relations. In the promotional film made for this purpose, the employee was recognizable only twice for a few seconds, one of the instances being a group picture. Approximately ten months after termination of the employment relationship, the plaintiff demanded that the defendant no longer use the film recordings and furthermore pay him damages for personal suffering (Schmerzensgeld) from its use. After the Labour Court had partially sustained the complaint, the Regional Labour Court completely dismissed the complaint. The plaintiff’s appeal also remained unsuccessful.

The Decision of the German Federal Labour Court

Initially, the BAG explained that the permissibility of picture publications in an employment relationship is primarily subject to sections 22, 23 of the law on Copyright for Works of Art (Kunsturheberrechtsgesetz - “KUG”). Pursuant to this provision, consent is required for any publication; however, the exact wording of section 22 KUG does not require such consent to be in writing. According to the BAG, this regulation, however, has to be interpreted in a constitutionally congruent manner, and in particular, the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz - “BDSG”) have to be observed. Therefore, the consent of the employee required the written form (Schriftform), which existed in the present case. Contrary to the widespread opinion, such consent is in general effective in the employment relationship. Whether consent can be revoked at a later time depends on the individual circumstances. To determine same, the interest of the employer in the cost-covering use of the pictures must be taken into consideration as well as the employee’s personal interest. Whether the employee is shown in a highlighted manner or in a general depiction of the company is of particular importance for such evaluation.

Comment

The decision of the BAG concerns some highly disputed and practice-relevant questions. It is not surprising that the BAG proceeds from the assumption that the KUG takes precedence over the BDSG, to the extent that pictures or video recordings are involved. However, the BAG then deviates from the common opinion that consent can also be given in an informal way. In its assessment, the BAG does refer to the particular circumstances of an employment relationship, although the arguments brought forward could most probably be transferred to other cases. It remains to be seen whether other courts will also adopt this line of argument in the future and whether this will lead to a general requirement of written consent for publishing pictures in situations other than employment relationships.

Furthermore, the BAG’s remarks concerning data protection regulations are noteworthy. The BAG clearly distances itself from the predominant opinion on two issues. First, the BAG believes that consent, once issued, cannot be revoked without cause. In addition, the BAG clearly states that the consent of the employee can be effective under the BDSG. To date, this view was strictly rejected by the supervisory authorities and by widely prevailing opinion due to the existing superior/subordinate relationship and the consequent putative lack of voluntariness of the consent.

The decision has two implications for employers:

  • Generally, in order to be able to publish pictures or other personal data of its employees, a company will require such employee’s written consent. Whether this consent can be effectively revoked at a later point in time depends on the individual circumstances.
  • In addition, the decision signifies that the consent of employees under data protection law can be a suitable way to justify an otherwise impermissible processing of data.

However, it must be reviewed in each individual case whether consent was given voluntarily and is therefore effective. This may certainly be doubted if the consent is to be given in conjunction with the conclusion of an employment agreement.

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