Does an employer have the right to use an employee's image to advertise services and goods?

Today's social networking trends mean that businesses are increasingly involving their employees in the promotion of goods and services they sell.

A side effect of this trend is that, after the termination of their employment contract, employees typically do not want themselves and their image associated with a particular company and its products, and therefore demand that all advertisements be removed from social networks and no longer used in the future. Can employers protect themselves against such demands from employees? Mantas Baigys, attorney at law and personal data law expert at AVOCAD, answers.

Under the Civil Code, a photograph (part of a photograph), portrait or other image of a natural person may be reproduced, sold, displayed, printed, or photographed only with the person's consent. Consent may be given orally, in writing or by implication.

According to the lawyer, neither the Labour Code nor any other legislation prohibits an employee from agreeing with the employer on the use of his/her image to advertise his/her goods and services on social networks.

"One of the essential conditions to be agreed between the employer and the employee is to assess and discuss the duration of the use of the image. In a legal situation where a person has freely authorised the use of his or her image for commercial purposes and has not discussed the term of use in the contract, the right of the person to the image is protected, given that this right is part of the right to privacy," the lawyer notes.

When two legal goods - the right to respect for private life in the context of image protection and the employer's proprietary interests in the advertising of its services and goods - collide, the protection of the individual's right to privacy must be given priority.

For these reasons, if the employee and the employer have not agreed on a time limit for the use of the image, the employee will normally have the right to withdraw his or her consent (which may be withdrawn during the term of the employment contract) to the use of his or her image in the employer's advertisements after the termination of the contract.

A key piece of advice from Mantas Baigis is that the agreement with the employee on the use of his/her image in advertisements, while discussing all the necessary conditions, must also clearly agree on the term of use of the image (e.g. how the image will be used after the end of the employment relationship).

"If such conditions are not included - according to the latest trends in case law - employers will be obliged to remove all advertisements from social networks and may be liable to pay for all the material and non-material damage suffered by the employee," the lawyer points out.

"The issue of the legality of the use of the image may also be investigated by the State Data Protection Inspectorate for breaches of the General Data Protection Regulation in the improper processing of employees' personal data, and if found to be in breach, could lead to huge sanctions," says Mantas Baigys.