In many companies, there is still a lot of uncertainty about how to deal with employee photos and videos in practice - when may which pictures be taken and published, what are the agreements needed, what if the videos are to be used for advertising purposes? And above all: what can happen if the photos and videos are taken "just like that" and posted on social media platforms?
Recently, the Labour Court of Kiel (decision of 28 April 2022, 2 Ca 82 e/22), and subsequently, the Regional Labour Court (LAG) of Schleswig-Holstein (decision of 31 May 2022, 6 Ta 49/22) indirectly dealt with this very question.
What happened?
A German employer in mobile care made various video recordings of the plaintiff, a (former) employee, and then edited these recordings into a promotional video. This promotional video was published on the YouTube streaming platform. Ironically, the employee implicitly consented to the video recordings, but not to being seen as a "testimonial" on YouTube. In fact, the plaintiff did not even know that the recordings were made for advertising purposes - which the plaintiff would not have consented to, either. In short, there was no legal basis for the use of the video sequences for advertising purposes and publication on YouTube. For this unlawful publication, the plaintiff sought non-material damages in the amount of EUR 6,000.00 and financial support for legal fees (a sub-type of legal aid). In the proceedings regarding legal fees, the Regional Labour Court of Schleswig-Holstein decided that the amount of EUR 6,000.00 petitioned for was too high for this type of violation of personal rights and that EUR 2,000.00 would be more appropriate. The plaintiff was eventually granted support for legal fees to sue for this amount.
Although the amount of EUR 2,000.00 in non-material damages may not seem much, this decision is very relevant for practical reasons: Other employees affected could also assert claims. Apart from these non-material claims for damages, fines could also be imposed by supervisory authorities. Furthermore, there is a risk that photos and videos used unlawfully may no longer be used or even have to be destroyed. The costs of having to completely restructure a marketing campaign can be immense, and massive damage can be done to the company image.
Therefore, before taking photos or videos of employees, the legal basis for processing and use should be established and ensured.
The KWR data protection team will be happy to advise you!
Decision of the LAG Schleswig-Holstein
(German only)