An employee can obtain damages simply because his employer delayed in following up on his request to remove a group photo of him from the company’s website. In a decision of 19 January 2022, the Court of Cassation ruled that the mere fact that an employee’s image rights have been infringed when he or she objects to the publication of his or her image gives rise to a right to compensation, without the employee having to prove any prejudice.
Everyone has the right to the privacy. This principle, laid down in Article 9 of the Civil Code, means that every citizen, every employee, has a right to the protection of his or her image. The employer cannot therefore use the photo of one of his employees without his consent. The mere fact that an infringement has occurred gives rise to a right to compensation. There is therefore no need for employees to justify any prejudice, the mere fact that they were late is enough to give rise to a right to compensation.
The employee’s agreement must be obtained for any photo-taking, reproduction or use; whatever the final medium of this image (intranet, company newspaper, internet site, promotional video, etc.).
This authorisation must of course be prior. The agreement must be in writing. The employee’s silence does not constitute tacit consent. The authorisation for the use of the image right must be as precise as possible, indicating the purpose, the medium used and its duration. And the employee’s refusal must be taken into account.
Key Action Points for Human Resources and In-house Counsel
Before a photo shoot or when an employee is hired, he or she must sign an authorization to use his or her image for the company’s needs. Be careful about the wording of the written agreement, as the content is precise.