An employee’s right to his image is an essential component of his fundamental rights to privacy and respect for his person. This right is protected by article 9 of the Civil Code.
Under article L.1221-1 of the Labour Code, an employment contract is an agreement whereby one person undertakes to work on behalf of another, under whose authority he places himself in return for remuneration.
Does the subordinate relationship between an employee and his employer, inherent in the employment contract, allow the employer to use the employee’s image without his consent?
Although the relationship of subordination gives the employer a degree of control over the employee, this is limited by respect for the employee’s right to privacy. In a recent ruling on 14 February this year, the Court of Cassation clarified an important aspect of employees’ rights about the use of their image (1).
1. The facts and the procedure
In this case, the employer of a company specialising in means of payment had distributed to its customers, on the occasion of two advertising campaigns, a brochure presenting the
lifestyle advisors in charge of handling customer requests received by email, including a photograph of the face and a bust of each lifestyle advisors and collective photographs of the latter, without their consent.
The Versailles Court of Appeal dismissed the employee’s claim for damages for improper use of his right of publicity. Indeed, he had not produced any useful evidence in support of his claim, in particular the document in question, and had therefore not put the Court in a position to assess the reality of the alleged infringement.
The Court of Cassation censured the appeal decision on the grounds that the employer had not disputed that it had used the employee’s image to produce a brochure addressed to customers, that the employee had argued in his written submissions that he had not given his consent to this use and that the mere finding of an infringement of the right to one’s image gave rise to a right to compensation.
2. Contributions of the ruling
Through its decision, the Cour de cassation has consolidated the principle that all individuals, including employees, have a fundamental right to control the use of their image. This decision is in line with the legal provisions and case law that recognise and protect individuals’ rights to privacy and image.
While it is true that the right to one’s image is protected by article 9 of the Civil Code, which states that “everyone has the right to respect for their private life and image”, the Court of Cassation’s ruling affirms that the subordination inherent in an employment contract cannot diminish the rights to privacy and image that each individual has.
The mere fact that an employee has agreed to have his photograph taken does not mean that he agrees to the image being used by his employer internally or for promotional purposes.
The second contribution of this ruling is procedural: the employee does not provide proof of the use of his image, but the Court considers that the finding of infringement of image rights results from the company’s own admission.
3. Criticism of the judgment
Despite its merits, this ruling has given rise to a number of criticisms regarding its application and implications.
The ruling could have been more precise in defining specific criteria for assessing the harm suffered by the employee, particularly with regard to the amount of damages. On the one hand, the employee does not provide proof of a loss; on the other hand, it must be quantified, and its extent identified, with the trial judges having sovereign power to assess the amount to be awarded to the employee (2).
Furthermore, the judgment does not provide clear guidelines on the issue of consent and how it should be obtained in the context of the employment relationship, which could lead to further disputes between the parties. A written agreement specifying the duration of use, the type of medium, the purpose of the use and any remuneration appears to be an essential clause to be included in an employment contract, or in an addendum, if the employer wishes to use the image of its employees…
(1) Cass. 14 Feb 2024, no. 22-18.014.
(2) Civil 1st, 21 Feb 2006, no. 03-19.994.
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