The right to image - employee

The image right is a right (developed by jurisprudence and doctrine), which requires the prior permission of someone in order to take or use his image.

Hence, before taking a photo or a video of someone, basically his permission must be asked. If you want to use these photos or videos (for example, for publication on the Internet or in a newspaper) afterwards, permission needs to be asked again. After all, permission to take someone’s photograph does not automatically imply the permission to use it. This authorization must be obtained separately.

However, when someone is in a public place, his picture can be taken without his explicit consent. There are several trends in the jurisprudence, but the majority agrees on the principle that when someone is in a place - accessible to the public - he has given tacit approval to be photographed.. Regarding the authorization for the use or reproduction of an image or video, it  depends on whether the person concerned is portrayed rather accidently or whether he is the main subject of the picture. If the person in question is the main subject of the photo and / or video, prior authorization is required before its use. In case his presence in the picture or video is merely incidental, his permission to use his image is in principle not required . This implied consent (both for making as for using the photograph) will also be assumed if the person in question is part of a crowd, where no single person is dominantly featured. In order to determine whether there is a   "crowd", the court applies a case-by-case approach. It is important to note that, if it would concern  a photo where the background is less important, permission needs to be obtained yet again.

Regarding the pictures taken in a closed circle (for example, during a group activity at work), a distinction is made whether they are focused on a certain individual or not. A focused image is an image in which one or more persons are visibly recognizable or when someone in fact posed for a photograph. Non-targeted images on the other hand are considered to be atmospheric pictures or photographs in which people accidently appear, and thus without an obvious focus on somebody in particular.
Regarding focused pictures, the prior consent of the person concerned is required before both taking as using the photograph. He has the right to know how the images will be disseminated (internally or externally, on the Internet, via an Intranet, in a newspaper, brochure, etc.) as well as the underlying reason or purpose behind these photographs. He must also be informed of his right to information, access and opposition regarding the captured images.

With regard to non-targeted images, no authorization is required and it suffices to inform the person concerned that pictures will be taken, for what purpose and for what publication. Shooting non-targeted photographs (ambience pictures of an activity or a group picture) is something that participants can expect. However, when these images will be used for advertising purposes, it no longer falls within normal expectations. Therefore, if the person in question can be clearly identified, his consent must be obtained in order to use the pictures for this particular purpose.

It should also be noted that this authorization is not required when the use of the image is required for the organization of work (identification). This follows from the law of 1992 on the protection of privacy with regard to the processing of personal data. The best example here is the publication of photos of employees on the intranet in a so-called "portrait gallery" or for an identification badge.

In conclusion, it is necessary to observe the following rules. Public dissemination of photographs of the employee in the workplace or at another private place, is only possible with the prior consent of the employee in question and must be limited to the purpose for which the latter has given his consent. If however, the use of the images is limited within the walls of the company and it is necessary for the organization of work, such consent is in principle not longer required. If on the other hand, the picture has been taken at an event outside the company, more specifically in a place accessible to the public, consent is required if that person has been obviously portrayed. Illustrations and photographs of crowds can be made without the prior explicit authorization, provided that they are used under normal expectations of the photographed employees.

24 October 2012

Griet Verfaillie -
Lynn Pype -

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