Spain: Misuse of employee´s image by employer in social media?

One of the personal rights of employees is honour and reputation, which is contained in Article 18.1 of the Spanish Constitution and is closely connected to the right to private and family life in Article 12 of the United Nations Universal Declaration of Human Rights and Article 8 of European Convention on Human Rights. From a national perspective in Spain, Organic Law 1/1982 provides protection of both the right to honour and reputation and the right to personal and family life.

This article tackles a case that deals with the evolving field of the treatment of employees´ personal data by employers. We analyse the ruling of the Court of Appeal of Madrid of 16 November 2017, in which the plaintiff was a dismissed employee who had worked for a multinational retail textile company. She was a designer there and at some point along the way, she consented – just once – to being photographed for design tests of products and garments.

But the pictures were never meant to be distributed on T-shirts and cups – which is what eventually happened. The scope of the consent she had given was not broad enough to cover having her face publicly exhibited and marketed.

The first instance court – the Labour Court of Madrid – ruled that her fundamental right of honour and reputation had been breached. At this stage then, the employer was found liable and ordered to cease selling the T-shirts and cups and to pay EUR 30,000 in damages for having reproduced her image publicly without consent.

The employer appealed based on the following four arguments:

1. That the Labor Court was not competent to hear the case because the employment relationship covered only the claimant’s function as a designer and had nothing to do with the photographs, which were separate from the employment relationship. The court should therefore declare its lack of jurisdiction.
2. That there was no basis for the amount of compensation claimed: the claim was vague, generic and failed to comply with the obligation to be specific in terms of the appropriate level of compensation.
3. That there was no clause in the contract dealing with using images of the employee simply because the claimant was employed as a designer and no such clause was necessary for her design work. The claimant did not deny that she had authorised being photographed when the picture was taken and this was enough to authorise the commercial use of the photograph on company products.
4. That the doctrine used by the Spanish Supreme Court was that proof of a breach of the right to honour and reputation required the image to be perfectly recognizable, which it was not in this case, because the employee was wearing large black sunglasses, was partially obscured by a can of soda and was wearing lots of makeup. Simply put: she could have been anyone.

The Court of Appeal considered that as the only connection between the two parties derived from the employment contract, it was clear that if her fundamental right of honour and reputation was breached, it was breached under the employment relationship. And as the disclosure of personal data is a matter covered within the employment relationship, the Labour Court was competent to hear the case.

The Court also found no evidence to suggest that the claimant was fully aware that agreeing to the photo shoot meant that she would find herself advertising garments for her employer. She had given her consent for one quite specific purpose (testing during the design phase) and this could not be expanded.

On the last argument, the Court concluded that she was perfectly recognizable on the image used and that it was not true to say that she could have been anyone, despite the sunglasses, makeup and can of soda. The ‘recognition’ test was met.

Thus, the Court of Appeal ruled in favour of the claimant.

In terms of compensation, the Court agreed with the employer that the claimant should have put before the court at least some level of objective justification for the amount of compensation sought – and that the failure to have done so should therefore give rise to a reduction in the final amount ordered by the Court. The claimant had asked for EUR 30,000 and so it reduced that to EUR 7,000 on the basis that the amount earned by the employer by using her picture had only be EUR 21,582. The Court reasoned that EUR 30,000 would have been disproportionate, as it was a higher figure than the amount made in terms of worldwide sales.

This ruling sheds some light on two aspects: 1) the scope and context of the consent needed to be given by an employee to allow it to use the employee’s physical image; and 2) the objective criteria on which the Court of Appeal fixed, what it felt was fair economic compensation to repair harm caused, given that there was a lack of statutory guidance.