Compensation for damages due to unauthorized use of employee photos after the end of the employment relationship

An employer must pay damages of € 10,000 to a former employee after the latter advertised with photos and videos of the departed employee for nine months after the end of the employment relationship. This was decided by the Baden-Württemberg Regional Labor Court in a ruling dated July 27, 2023 (Case No. 3 Sa 33/22).

Facts

The ruling of the Baden-Württemberg Labor Court (LAG) is based on the following facts:

The plaintiff, the former employee, is asserting, among other things, a claim for damages due to the unauthorized use of video and photo recordings with images of him after the termination of the parties' employment relationship.

Until April 30, 2019, the plaintiff was employed by the defendant, a company in the advertising technology industry, as an advertising technician in the area of foiling. Since May 1, 2019, he has been working for a competitor of the defendant. The defendant operates the "W.-S." and organizes training courses on foiling through this format. The plaintiff led, among other things, these trainings offered by the defendant for internal employees and for external persons, whereby he passed on special know-how on the subject of "foiling" to the participants. During the term of the employment relationship, the defendant, with the plaintiff's consent, had the plaintiff take numerous photos "at work" and produce an approximately four-minute promotional video, which was then used for advertising purposes on the Internet with the plaintiff's consent.

After the plaintiff left the employment relationship, the photos and the video continued to be used by the defendant. The plaintiff requested the defendant several times to delete the disputed image material. However, the defendant initially did not comply with the request. The defendant did not fully comply with the claim for removal until February 2020.

The Pforzheim Labor Court awarded the plaintiff a claim for damages in the amount of € 3,000. The plaintiff appealed this decision to the Regional Labor Court (Landesarbeitsgericht, "LAG").

Reasons for decision

The LAG ruled that the defendant was liable to pay damages for violation of Article 17 (3) Sentence 1 in conjunction with Article 82 (1) of the German GDPR (“DSGVO”) and to pay monetary compensation for violation of the plaintiff's right of personality due to the unauthorized use of image material relating to him in video and photo recordings in the amount of not only € 3,000, but € 10,000.

The LAG based its decision on the fact that the plaintiff's right of personality had been significantly impaired in the present case. According to the LAG, the labor court did not sufficiently take into account the fact that the defendant had used the plaintiff to pursue its own commercial interests beyond the continuation of the employment relationship when determining the amount of monetary compensation. In such cases, the amount of the monetary compensation must have a genuine inhibiting effect; the intensity of the violation of the right of personality can be taken into account as a further assessment factor. Weighing up the circumstances, the LAG considered a compensation amount of € 10,000 to be appropriate.

It should not go unmentioned, however, that the LAG also clarified in this decision that the delayed provision of information in response to a request pursuant to Article 15 (1) of the German GDPR (“DSGVO”) does not in itself constitute non-material damage. A mere breach of the requirements of the German GDPR (“DSGVO”) is not sufficient to give rise to a claim for damages under Art. 82 (1) GDPR (“DSGVO”).

Furthermore, the LAG did not recognize any presumption in Article 82 (1) of the German GDPR (“DSGVO”) that the loss of control over one's own data associated with a violation of the German GDPR (“DSGVO”) as such leads to a compensable non-material damage.

Notes for practice

The ruling is pleasing for employers in that not every violation of the data protection regulation immediately results in a claim for damages. However, the ruling made it clear once again that employees also have a "right to be forgotten" in addition to their right to their own image. It is therefore advisable to agree on clear rules for dealing with employees' images, particularly with regard to the scope of use. Employers must ensure that when employees leave the company, they generally have a right to have their images deleted. If the employer does not comply with this, there is a risk of serious claims for damages on the basis of the German GDPR (“DSGVO”), as in this case.