For example, what to do when you suspect that your employee has called in sick to watch an Olympic event on TV? What about employees taking holidays to attend the games, or even participate as an athlete?
Over coming weeks, we will provide practical answers to five of such employment questions and will comment on the legal pitfalls which might exist under BE, NL and LUX law.
Q: Belgian cyclist Greg Van Avermaet has won gold. To celebrate this triumph, the company has foreseen ice cream and there has been a picture taken of your employee, Louis, eating ice cream. Two days later, Louis has left the company. He has noticed that his picture has been published in the company brochure. Can he demand to have his picture removed under Belgian, Dutch, and Luxembourg law?
A. The ‘right to image’ requires that, before taking and publishing pictures of an employee at the workplace, the permission of the employee concerned must be sought, (1) for the taking of the picture and (2) for the subsequent use hereof.
However, in several situations, the permission to take a picture is presumed:
- if the picture was taken in a ‘public place’ (not the employee cafeteria, but e.g. in a public bar to celebrate the triumph), or
- if Louis clearly poses for the picture.
Nevertheless, Louis’ express permission to subsequently use/publish the picture will still be required, unless:
- Louis is not recognisable in the picture, or
- Louis ‘accidently’ appears in a non-targeted shot of the entire bar, without an obvious focus of the photographer on him, and
- the photo is subsequently used according to ‘normal expectations’.
It is in such cases sufficient to inform the participants of the group activity that pictures might be taken for a particular purpose.
If, on the other hand, Louis is visibly identifiable and recognisable on a focused shot of him eating ice cream, his prior authorisation should be requested before using the photograph in any way.
In order to limit the risk of any issues arising in this respect, we recommend clearly informing employees in advance on the use that can be made of photographs taken of them during company activities and events, e.g. via a general company policy regarding photographs (to be signed for acceptance by each employee).
A. Louis’ picture was taken without his explicit consent and perhaps even without him noticing. After all, Louis was enjoying an ice cream while in a rather ecstatic state. If you found yourself in this same situation, you might hope that the law were there to save you from an awkward picture being published. In the same way, as Louis’ former employer, you might want to avoid risking wasting the good money you spent on the brochure if Louis filed a claim. Right?
Well, not exactly. Publication of photos taken without the consent of the person in the picture is allowed according to the Dutch Copyright act, unless that person – in this case Louis – has a ‘reasonable interest’ to object against publication. Such reasonable interest may be of a personal and/or commercial nature. A reasonable personal interest may be an invasion of one’s privacy and/or for instance if the picture is taken in a certain (undesirable) context. A reasonable commercial interest might have existed in this case if Louis were a celebrity and had been able to make money off of the publication of the picture. Assuming that your company has a good reputation (in our view, the fact that you celebrate Olympic victories with ice creams for all employees clearly attests that assumption) and that Louis is not a celebrity, Louis has little chance of success if he orders the removal of his picture from your brochure. Depending on the reasons for him leaving your company and the degree to which the picture is extremely embarrassing (from a more or less objective perspective), Louis’ chances may increase.
A: While Louis may have been happy to have his photo taken while enjoying a delicious ice cream at a company social activity, this does not mean that he has automatically consented to the use of his photo in the company brochure. To be able to use his picture in the brochure, his employer has to obtain his explicit consent. Since Louis was surprised to see the photo printed in the brochure, we may assume he did not give his explicit consent and thus that the company has used his photo without the necessary permission. In principle, he may require his ex-employer to remove the photo.
Louis hasn’t explained if the celebratory ice-cream eating took place in a public area or at a public event. If this was the case, a group photo may be taken as long as there is no focus on a specific individual and the photo is used for media coverage purposes only. In Louis’ case, since the photo is used in the company brochure, it would appear that his employer cannot justify the use on this basis. If Louis is the only person in the photo or if the photo was taken at a private company event, then he has even more grounds to object. In a small jurisdiction like Luxembourg, employers are very aware of their reputation and usually try to stay on good terms with ex-employees. The best solution for Louis would be to explain his concerns to his ex-employer in an informal manner. Hopefully they will seek to accommodate his request.