The transfer of image rights in the workplace

In today's society, advertising is a phenomenon found in all areas of our lives; when we read the newspaper, we visit social networks and/or any website. That being the case, if a company doesn't warn, it doesn't exist. As a result, most companies are forced to carry out advertising campaigns (more or less aggressive), as a key point to achieving the success of their products or services, and thus being able to differentiate themselves from the rest of the competition.

Therefore, many companies use their own employees as “actors” to promote their services or products. These becoming the image that represents the society for which they work, and who better than the workers themselves to be the visible face for potential customers, advertising the services offered as realistic as possible. However, the use of workers' images must comply with the guarantees established in article 18 of the Spanish Constitution and in its implementing legislation, being Organic Law 1/1982 of May 5, 1978, on civil protection of the right to honor, to personal and family privacy, and to one's own image; and the Regulation of 2016/679 on the protection of individuals with regard to the processing of personal data and the free circulation of these data, as well as the rest of the regulations.

Well, we must not forget that we are dealing with a fundamental right defined by the Constitutional Court as “a personality right derived from human dignity and aimed at protecting the moral dimension of people, which gives its owner a right to determine the graphic information generated by their personal physical traits that may have a public dimension”. It is the owner who has the exclusive right to disseminate or publish his image and, therefore, to avoid the unconditional dissemination of his physical appearance, preventing the reproduction or publication of his own image by a third party, whatever its purpose, commercial, informational, etc.”

In connection with the workplace, the right to self-image is not unlimited, since workers must adjust or modulate themselves according to particular characteristics: the existence of management power exercised by the employer, the mutual duty of good faith that exists between the parties, the worker's particular relationship of subjection, and others. But what has been described does not imply that the conclusion of an employment contract deprives one of the parties, in the present case the worker, of the rights that the constitution recognizes as a citizen.

Therefore, it is necessary to pay attention to the particular way in which the right to one's own image is exercised within labor relations, delimiting their scope and defining their protected legal framework. To this end, we cite Constitutional Court ruling 99/1994 of April 11, which it considers to be of essential interest “to coordinate the interest of the worker and of the company that may collide with him (...) the object of the contract and the extent to which it required, or could be understood to require, in accordance with the requirements of good faith, the limitation of the fundamental right for the fulfillment and satisfaction of the interest that led the parties to contract. All this because it is clear that there are activities that bring with them, a necessary connection relationship, a restriction on the right to the image of those who must carry them out, due to their very nature, as are all activities in contact with or accessible to the public”.

But it is the recent Supreme Court ruling 1436/2019, which marks the limits that were granted to the object of the contract, to determine whether or not the employer, in the event of fact, has abused his business powers over the use of the worker's image. The ruling questioned the validity of the contractual clause that an employer incorporated into the contracts that employees signed at the beginning of the employment relationship. The National High Court considered that the aforementioned clause was null and void because it violated the employee's right to their own image and that such consent must be explicitly requested when the affected party is going to be employed for video call work, adjusted to the circumstances of the specific case, without including the use of generic clauses.

The Court concludes that the clause is not abusive, rather, informative and receiving an express consent that was not necessary to require in accordance with the legislation in force at the time the application was filed; as is the case with current legislation. Well, the regulations show us that consent is not necessary today, nor was it then, when the data, the image, were transferred within the framework of the fulfillment of an employment contract whose OBJECT LIES in the use of the image as an implicit condition of this. For this reason, attention must be paid to the object of the contract and to the natural exercise of the benefit that can be deduced from the fact that the worker must present his image on behalf of the company in order to provide a better service. For all these reasons, consent is implicit in the contract, since its object and its execution are specific to the functional scope of the Collective Agreement of application.

A different case would be that the company will use the image of a worker for commercial purposes, that is, for a marketing campaign in which a product or service is offered and the worker provides his image for that specific purpose. In this case, prior consent would be absolutely necessary for the employer to make legitimate use of the worker's image. In the said consent, you must be informed of the purpose of the transfer, the time during which the image will be transferred and the remuneration made for the mass. It must always be specified in a written document.

Well, we are dealing with different activities because it is not the same to promote a product in a marketing campaign for the sole purpose of advertising, than to serve customers by giving them information about a product that makes it easier to sell, through a video call being part of the object of the employment contract and complying with the applicable collective agreement.

Guadalupe Tejela (T&L Attorney)

Article published in the October edition From the monthly newspaper CEHAT