Germany: Employer Sentenced to Payment of 10.000,00 EUR in Damages for Unauthorised Use of Photographic Material Showing a Former Employee

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

During employment, an employer produced photographic material of an employee working as an instructor with the employee’s consent. This material was then used to advertise the services of the employer on its website. However, after the employment ended, the former employer continued to use the material showing the employee for advertising. Several requests to delete it were made, but they were not complied with. As a consequence, the former employee filed a lawsuit against his former employer.

The Regional Labour Court of Baden-Wuerttemberg held that even if the plaintiff had consented to the use of the photographic material for advertising purposes at the time the photographic material was taken, this does not mean that this agreement continued beyond the period of employment. The court considered that the plaintiff took up employment in a comparable position with a competitor immediately after the end of his previous employment. The former employer would have been obliged to remove all of the plaintiff’s visual material from its advertisement after the end of the employment relationship, even without being asked to do so. However, they failed to comply with this obligation and, as a result, continued to significantly infringe the plaintiff’s personality rights. For this reason, the employer was obliged to pay damages for violation of Art. 17(2) s.1 in conjunction with Art. 82(1) GDPR for the violation of the employee’s personality rights.

The court ruled that the employee was to be awarded 10.000,00 EUR in damages for the unauthorised use of photographic material relating to him after the end of his employment.

Practical Points

• The use of photographic material of employees must be constantly reviewed to ensure compliance with the GDPR regulations and the personality rights of employees. When an employee leaves the company, advertising material showing this employee may no longer be used.
• Employees also have the right to obtain confirmation as to whether or not personal data, such as photographic material, is being processed (Art. 15 GDPR). The controller (employer) has to provide this information within one month after a corresponding request.