Non-compliant publication of photos in brochure – employee receives compensation of € 5,000 for pain and suffering

In the underlying facts, the plaintiff was employed as an employee at a university institution. Her responsibilities as a post doc coordinator included planning and implementing measures, such as individual coaching and workshops, to support junior scientists.

At the beginning of January 2018, the defendant also had photos taken of the plaintiff on the initiative of marketing. She was therefore presented with a consent form in advance, which she did not sign, but instead noted “not for my appearance” in the margin. In August 2019, the defendant nevertheless published a photo in a brochure showing the plaintiff teaching and a listening student wearing a headscarf. The advertising text underneath emphasized the international orientation of the defendant. After the plaintiff pointed out that she did not agree to the use of her photo, the defendant informed her that it had deleted it and that although the printed matter could no longer be withdrawn, it would no longer be used.

In the proceedings before the Münster Labor Court, the plaintiff claimed that she did not want to be photographed under any circumstances because of her ethnicity and therefore had not submitted a written declaration of consent. The defendant claimed that she had declared her consent verbally.

In the proceedings before the Münster Labor Court, the plaintiff claimed that she did not want to be photographed under any circumstances because of her ethnicity and therefore had not submitted a written declaration of consent. The defendant claimed that she had declared her consent verbally.

The Münster Labor Court states in the reasons for its decision that written consent must be obtained before publication in accordance with Section 26 (2) sentence 3 BDSG. In the employment relationship, Section 22 of the German Copyright Act (KUG) is to be interpreted in this case as meaning that consent must be given in writing. In addition, the plaintiff should have been informed in text form about the purpose of the data processing and her right of revocation.

The publication of employee photos is data processing within the meaning of Art. 4 No. 2 of the GDPR, which may be justified by an element of permission regulated by Art. 6 (1) of the GDPR.

According to Art. 6 (1) lit. f GDPR, this can be based on the protection of the legitimate interests of the controller or a third party. In the case of the publication of employee photos for the purpose of presenting the company or for advertising purposes, the balancing of interests to be carried out will regularly be in favor of the employee.

In this case, it is advisable for the data controller to obtain a declaration of consent in accordance with Art. 6 (1) a of the GDPR in order to be on the safe side. From the perspective of data protection law, the following points should be noted, among others:

• Sufficient information of the employee in text form, Art. 13 GDPR, Sec. 26 (2) p. 4 BDSG.
• Formal requirements of consent, Section 26 (2) sentence 3 BDSG, Section 22 KUG (interpretation requires written form in certain cases).
• Voluntariness of consent, Section 26 (2) BDSG.
• Free revocability of consent, Section 7 (3) GDPR.
• In principle, limitation of consent to the period of employment, Art. 5(1)(b) GDPR.

 

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