Portrait rights of employees are an important legal consideration for Dutch employers, touching upon privacy, data protection, and commercial interests. Governed by Articles 19 to 21, 30 and 35 of the Dutch Copyright Act (‘Auteurswet’) and intertwined with the General Data Protection Regulation (“GDPR”), portrait rights protect employees from unauthorized use of their image. A portrait includes any identifiable image of an individual, not just photographs, and it is not necessary that the portrayed person be immediately recognizable or that it be recognition by persons from the public for whom the disclosure is intended.
The use of images of employees for business purposes requires explicit consent. Merely agreeing to a photoshoot does not imply consent for all forms of usage; employers must seek specific permission before publication. Any prior agreement should clearly outline the scope and extent of intended uses. For some images, no permission is needed from the employee, such as for photographs taken during work events. However, disclosure of an employee’s image is not permitted insofar as a reasonable interest of the employee portrayed opposes disclosure. This requires a balancing of interests. Two main legal bases underpin this balance: the privacy interest of the portrayed employee and the employer’s freedom of expression. The privacy interest often weighs heavily, particularly when the person depicted is not considered a public figure. Courts consider several factors in balancing these interests. The individual’s characteristic play a crucial role in considering how their image can be used. The context and manner in which the image was created also influence permissions; more intimate or revealing images have stronger privacy claims. The purpose behind publishing the image furthermore impacts its permissibility, especially if it serves public interest or contributes to societal debates.
Employees can oppose their image’s use if it affects their privacy or if they have a reasonable interest against its use, potentially impacting their reputation or personal life. For instance, in cases where there is no explicit consent or when the usage extends beyond what was initially agreed upon, employees have grounds to challenge such actions legally.
The recent case between the Dutch grocery delivery service ‘Picnic’ and its former employee illustrates the complexities involved in portrait rights disputes. An employee's image had been used, including by affixing the image life-size on the vans used by the company for delivering groceries without her explicit consent for this. The Amsterdam District Court ruled that Picnic had violated the employee’s portrait right by using her image without proper consent beyond what was stipulated in her quitclaim form signed before the photoshoot, which had only permitted use of her image for promotional materials done within the available promotional channels of Picnic. Life-size images on delivery vans could not, in any case, be included in Picnic’s promotional channels, according to the Amsterdam District Court. Consequently, Picnic was ordered to pay EUR 10,000 in damages.
However, while the Amsterdam Court of Appeal upon appeal upheld the District Court’s ruling that Picnic had violated the employee’s portrait right, it overturned the District Court’s ruling that Picnic had to pay EUR 10,000 in damages, as the violation did not result in either material or immaterial damage to the employee. There was no significant threat of future unauthorized use of the employee's image because Picnic had taken sufficient measures to prevent such occurrence, insufficient evidence was presented to demonstrate actual damage or a significant impact on the employee’s life caused by the usage of her image, and there was no proven harm to the employee’s honor, reputation, or personal privacy sufficient enough to justify such compensation.
In conclusion, portrait rights of employees represent a critical intersection of privacy, consent, and legal obligations for employers. The case of Picnic and its former employee highlights the importance of explicit, well-defined agreements (e.g. quitclaims with a proper scope) and careful consideration in using employee images.
