Part 7 of this series looked at how far an employer might be exposed if employees whose images were used in internal or external marketing or other corporate communications then withdraw their consent to that processing.
Our Global IP and Technology team has now provided some useful further thoughts on this risk, accepting that the practical import of the new law in this area remains unclear, but offering some guidance in the meantime.
Essentially, the team recommends that you make your use of the employees’ images the subject of free-standing contracts to run in parallel with the employment relationship. So what would that separate contract look like? Remember that GDPR consent must be “freely-given, specific, informed and unambiguous”, so ideally it would:-
- be in writing for obvious evidential purposes;
- specify (perhaps even attach) the particular images to be used. Only the least self-aware among your staff will be happy with indiscriminate use of shots of them yawning, frowning or wearing the arresting green pallor of the morning after a night on the tiles;
- identify where those images will be used (website, brochure, marketing flyer, etc.) and in conjunction with what text or other images;
- identify also to whom those materials will be distributed (job candidates, existing employees, potential customers, general public, etc.) and in the case of hard copies, in approximately what numbers;
- make clear for how long the images will be used – only until a particular date or product launch, for example – but noting that hard copies of brochures already in circulation at that time cannot and will not then be traced or recalled;
- perhaps offer some notional payment to the employees to reinforce to them the significance of the consent being given. However, do note that the making of a payment does not override the employees’ GDPR rights to withdraw consent, nor (as the IPT blog makes clear) does it give the employer any realistic rights of recourse against the employees if they choose to do so. You could provide that the employees might withdraw consent at any time on the repayment of a pro-rated part of that sum, but if that is still a number significant enough to act as a deterrent to withdrawal, you have almost certainly paid far too much to start with;
- if the agreed duration of use of the images is lengthy, and the hard copies of them are produced in batches, then perhaps provide the employee with a right to withdraw consent on a certain period of notice in the interim, allowing the employer a reasonable opportunity to use up existing stocks of hard-copy materials and to replace the relevant digital images without rush; and
- last, an express acknowledgement by the employees that their entering a parallel contract was voluntary and that they had not been placed under any pressure or threat to do so.