Former Coolblue employee found to be in the wrong

It is probably familiar to you: employees who are photographed or filmed and then see themselves again in an advertisement or on their employer's social media. Is this allowed, also in view of privacy? Recently a former employee of Coolblue who objected to this was proven wrong. Read more about this here.

What was going on?

Employee started working at Coolblue on 8 August 2017, for a period of seven months. The employment contract contains a not uncommon provision:

"About portrait rights. You are the face of our company. That is why we like to use images with your portrait on them. We put them on our website and on YouTube, in brochures, booklets, annual reports and all our other statements. You like it and so does your mother. Of course, you waive the portrait right, also for the period after your employment. Fortunately, we still have the photos...".

Subsequently, a second employment contract is concluded for eight months, effective 8 March 2018. This contract also contains a similar provision as just quoted. On 24 August 2018, Coolblue informed the employee that his contract had been extended by eight months and would expire on 7 July 2019. It is indicated that the terms and conditions of employment will remain the same. On 19 October 2018, employee is told that his contract will be extended for an indefinite period, with an effective date of 8 July 2019. Again, the terms and conditions of employment do not change. All this is confirmed by letter.

Unfortunately, the employment relationship did not last long, as the employee was summarily dismissed on 7 August 2020. On 5 October 2020, he instituted proceedings before the subdistrict court concerning this dismissal, but on 22 December 2020, the court ruled that his dismissal was legally valid.

What was the opinion of the employee?

Employee believes that Coolblue is infringing his portrait right. He wants his portrait removed from the delivery vans and a promotional video on YouTube with his images taken offline. His claim: compensation of € 25,000. He argued that he had not given permission for the unrestricted use of his portrait right.

The employee was of the opinion that he had a reasonable interest in opposing the use of his portrait right, because it involved an infringement of his personal privacy. According to the employee, this constituted a violation of Article 8 of the ECHR. The advertisement meant that he was still associated with Coolblue and the public would think that the photo had not been taken without the employee's permission and would interpret this as a sign of public support for Coolblue's products or services by the employee.

As noted, the employee was dismissed with immediate effect and this was reported in the media. As a result the employee was recognised on the delivery vans and associated with Coolblue. His new employer also questioned him about his work at Coolblue and the reason for his dismissal. He then had to look for a new job. Finally, the employee no longer wanted to be associated with Coolblue and had to put the dismissal behind him. But this was not possible now that Coolblue was still using his portrait. The employee argued that Coolblue's commercial interests did not outweigh the infringement of his privacy caused by the pictures.

The employee also stated that Coolblue should have asked him for new permission under the GDPR to publish his portrait, and that Coolblue should have informed him of his rights and obligations in the field of privacy.

And what does Coolblue say?

Coolblue states that it is known for having its own employees participate (during working hours) in advertisements (photo shoots, videos). Employees can choose this themselves. Coolblue refers to the article in the employment contract, which has been explicitly extended three

On 4 January 2019, a professional photo shoot took place with the consent of the employee for the wrapping of Coolblue's new electric delivery vans. The employee was happy to cooperate. He also collaborated on an online promotional video by Coolblue about the use of the electric delivery vans. This video has been on YouTube since 5 March 2019. During his employment, the employee never objected to the use of his portrait; in fact, he was enthusiastic and proud of it.

According to Coolblue, there is no violation of the portrait right since the employee himself gave permission for the use of his portrait on the delivery vans and in the promotional video, and there is also no question of a reasonable interest within the meaning of Article 21 of the Dutch Copyright Act.

Furthermore, Coolblue mentions that permission was given both explicitly and implicitly. Coolblue also feels that its own interests outweighed those of the employee and that the publications had a positive effect on the employee, who after all worked for Coolblue. The delivery vans are used seven days a week; it is not possible to simply pull them over. That would have major consequences for the delivery of orders. Moreover, re-wrapping the vans is very expensive.

Coolblue argues that it has already accommodated the interests of the employee, because the portrait on the 36 delivery vans was adjusted and phased out in line with Coolblue's marketing policy and the lease term, the portrait was not used in other/new communications and the promotional video on YouTube has been removed.

Judgment of the Subdistrict Court on the application of the Copyright Act

To start with, the subdistrict court formulated the legal starting point, namely: the person who is depicted in a portrait, without having given instructions to do so, can, by virtue of Articel 21 of the Copyright Act, oppose its publication by the copyright holder or a third party, if he has a reasonable interest in doing so.

However, if the person portrayed has given his consent to the publication of the photograph, he has thereby waived his right to invoke Article 21. Consent can only be said to have been given if the person portrayed has explicitly consented to the manner of publication of the photo or must be deemed to have implicitly consented. Depending on the circumstances of the case, including the nature of the publication, the user of the photo will have to satisfy himself that the person portrayed has indeed given permission for the publication in question.

Whether consent is to be deemed granted and, if so, under what conditions, must be assessed on the basis of general contract law. This depends on the sense in which the parties, in the given circumstances, could reasonably attribute to each other's statements and conduct.

According to the subdistrict court, in this case there is no question of a silent extension of the employment contract, given the second signed employment contract and the two letters from Coolblue about the extension of the employment.

Permission to publish an employee's portrait need not always be given explicitly. Consent can also be inferred implicitly, for example from the behaviour of the person portrayed. In this specific case, the subdistrict court found that the employee had given his permission both implicitly and explicitly. Matters that weigh in:

• the signing of the two employment contracts
• the two letters from Coolblue concerning the continuation of employment
• the permission of the employee to take photographs and to appear in a promotional video (in which Coolblue made clear the purpose of this and how the material would be used).
• the absence of objections from the employee afterwards.

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In combination with the fact that the visual material itself has a positive image, the subdistrict court considered that Coolblue had sufficiently ascertained that the employee had given permission for his portrait to be published in the manner Coolblue had done.

It is also important that it has not been shown that the portrait of this employee has been used again and in other advertising expressions than (once) on the 36 delivery vans and in the promotional video.

Although the subdistrict court understands that, given the summary dismissal, the Employee no longer wishes to be associated with Coolblue, this is separate from the publication of the Employee's portrait. The verdict is therefore that the employee is deemed to have waived his right to oppose publication (Article 21 of the Dutch Copyright Act).

Application of the GDPR by the Subdistrict Court

Also, the employee's reliance on the GDPR (General Data Protection Regulation) does not help him either. Photographs and videos do fall under the concept of "personal data" in Article 4 of the GDPR. Processing of such personal data requires a so-called processing basis. Without that basis, it is unlawful to process the personal data.

According to the subdistrict court, the employee has now withdrawn his permission for the processing of his personal data, which is permitted. But there is another basis for processing, and that is Coolblue's legitimate interest. However, this interest must first be weighed against the employee's fundamental freedoms and rights.

The subdistrict court found that Coolblue had a commercial interest in advertising its products and services and stated that this interest was also protected by Article 10 of the ECHR. Coolblue also argued, without being refuted, that - if it were no longer allowed to use the employee's photograph - the costs would be unreasonably high and the impact on its business operations enormous. It is also undisputed that Coolblue has accommodated the interests of the employee by phasing out the portrait of the employee on its delivery vans, by not using the portrait in other or new advertisements and by removing the promotional video on YouTube. In the opinion of the sub-district court, Coolblue has demonstrated a sufficiently legitimate interest whereby, under these specific circumstances, the processing of personal data is necessary (proportionate and alternative) and, when weighed against the interest of the employee, can justify the infringement of his privacy.

Final Remarks

In short, the employee was unsuccessful: there had been no violation of his portrait right or any other unlawful actions on the part of Coolblue. His claims were rejected. You can find the full judgment here.

Given the increasing popularity of social media for business use, including not only LinkedIN but also Instagram and YouTube, we recommend employers to always record whether images of employees are used for advertising purposes and if so, in what way and for how long. Keep in mind that under the GDPR, there must always be a basis for processing personal data. If you would like any help or advice in this matter, please contact the lawyers at SPEE advocaten & mediation. This, of course, also applies to other questions you may have in the field of copyright law, employment law or privacy law.