When using an employee photo for marketing a business would consent of the employee be required?
Many employers use the photographs of their staff to promote their business websites and as part of their business marketing campaigns both in print and on social media. This is often done with good positive intentions to demonstrate that the company values its staff and the services they provide to their business clients.
The processing of the photographs will be governed by the General Data Protection Regulations (2016/679 EU) and the images must to be processed in accordance with its principles. If an employer was to use the employees’ image without first having gained the employees consent, they could potentially breach the General Data Protection Regulations.
The General Data Protection Regulations require the employer to inform the employee if the employee personal data is being processed and why it is being processed. The employee must be made aware of their right to know who holds the data and the details of any party their data is shared with.
How to obtain employee consent
As photographs can be classified personal data they required to be processed as the General Data Protection Regulations.
When an employee is identifiable in a photograph this will be classed as sensitive personal data. An employer is therefore obliged to obtain the employee’s consent if they wish to use the employees’ image for marketing purposes.
The employer may attempt to argue legitimate interest as a lawful basis for using the photos. The use of the photographs being used to promote the staff and the business both internally and externally to customers and new potential customers. The employer is obliged to process all information about their employees in accordance with General Data Protection Regulations. Employees are must be made aware that their personal data may be processed by the employer and for what purpose. The General Data Protection Regulations requires that consent must be freely given. Therefore, the legitimate interest ground should be viewed as a last resort, because of the unbalanced relationship between the employer and employee. When the data is sensitive it would be difficult to argue consent was given freely without first obtaining written consent from the employee.
Even where the employee has given written consent to comply with the General Data Protection Regulations. employee should still be allowed to withdraw their consent at any time. This may cause a problem where an employee insists on their photograph being removed from the company website or marketing materials. If an employee withdrew consent to use their image the employer must look at any contractual terms and staff handbook policies to see what is said about taking photographs of employees and for what purpose those images can lawfully be used.
Employees right to privacy
The employee has a right to privacy under the Human Rights Act 1998. Under Article 8 of the Human Rights Act 1998, individuals have the right to respect for their private and family life, home and correspondence. Therefore, using an employee's photograph will be an infringement of that person's private life, unless the employee's consent has first been obtained.
In light of this employer would be advised to always obtain the employees consent in writing so that the employee can provide considered consent. The consent agreement should include, among other things, full details about how the photograph will be used and where it will appear.
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