Under the provisions of Polish law employers are entitled to obtain their employees’ pe-sonal data. Art. 22¹ of the Polish Labour Code specifies the scope of this data, but excludes photos of employees. It’s not unusual, however, for employers to acquire an employee’s photo during the recruitment process and to then post it on the company website.
But are employers entitled to post employee photos on the company website without the employee’s consent? Actually, they aren’t.
Under the Law of 4 February 1994 on Copyright and Related Rights, individuals must agree to the dissemination of their image. Before publishing an employee’s image on its website, the employer must obtain the employee’s consent. This consent must be granted explicitly, never implicitly.
As the law does not specify the type of consent, it may be given verbally. For evidential purposes, however, a written form is recommended. An employee’s statement of consent should also specify its scope, e.g., size of the photo or time of publication.
No consent required
The employer is exempt from the obligation to obtain the employee’s consent in the following cases:
- an employee’s image constitutes only a small detail of a public event;
- the employee is a public figure and their image has been made public in connection with the public function that they perform;
- the employee has been compensated for providing their image.
If the above-mentioned cases do not apply and the photo has been placed without the employee’s consent, then the employee is entitled to raise a claim against the employer for breach of image protection under the Law on Copyright and Related Rights, namely a request from the employer to remove breaches, in particular to make a public statement in a certain form and with appropriate content. If such breach is culpable, however, the court may award damages to the employee whose right of protection has been infringed for the wrong incurred and at the request of the employee may oblige the employer to pay a certain amount for a community purpose.
The provisions of the Civil Code also protect a person’s image, as it is considered as a personal right. If an employee’s image is disseminated without the employee’s consent, the employee is entitled under the Civil Code to demand that their image cease being disseminated, as well as to claim compensation or redress for material damage.
Employee’s image and personal data protection
An employee’s photo is personal data and the rules for processing it are specified in the Law of 29 August 1997 on Personal Data Protection. Employers may process personal data only to the extent specified by the law. Under the Law on Personal Data Protection, employers may process employees’ personal data on the basis of the following: provision of law, legally justified aim and employee’s consent.
The employer places its employee’s photo on the website mainly for marketing purposes, as the photo is not required for contacts with contracting parties, as opposed to the first name, surname, electronic address or telephone number. This aim is not legally justified, as the company may operate without placing its employees’ photos on the company website. Therefore, under the Law on Personal Data Protection, the employee’s consent to publish the photo on the employer’s website is required.