In today's digital world, a company's online presence is an essential component of effective marketing. It has become common practice to publish employee photos on the homepage and in social networks in order to introduce one's company. The Lübeck Labour Court (ArbG Lübeck, ruling of 20.06.2019 - 1 Ca 538/19) was called upon to determine the consequences of employers failing to comply with the General Data Protection Regulation (GDPR) when publishing photos of employees.
In the case at hand, the employee consented to the publication of a photo including name and job title. It was published on the notice board and on the company's website. The employee's consent was withdrawn after leaving the company. The employer then removed the photos from the notice board and the company website.
Subsequently, however, the employee discovered that his former employer had also published the corresponding photo with name and job title on its Facebook page. Furthermore, the employer had not deleted the photo after the termination of the employment relationship. After a lawyer's request on behalf of the employee, the employer deleted the corresponding post. The employee claimed compensation in the amount of € 3,500.00 in court proceedings.
The Labour Court of Lübeck held damages of € 1,000.00 to be appropriate.
The court first found that the publication of the employee photo on Facebook was not necessary for the establishment, performance or termination of the employment relationship pursuant to section 26 para. 1 sentence 1 BDSG. Furthermore, the Labour Court held that an employer could not base the publication of an employee photograph for legitimate interests under Art. 6(1)(f) GDPR. There was also no written consent from the employee concerned to have their photograph published (author's note: In the meantime, however, written consent is no longer required when obtaining consent in an employee context due to the Second Data Protection Amendment and Implementation Act pursuant to § 26 (2) sentence 3 German Data Protection Act (BDSG)).
The court emphasised that a claim for payment under the GDPR is not conditional on a serious violation of the data subject's personal rights.
The Labour Court considered the fact that the employee had at least consented to the photo being posted on the notice board and on the company's website in mitigation of the claim. There was also no serious violation of the right to one's own image.
Employers should take care to comply with all data protection requirements, particularly in the context of an employment relationship. Employee photographs in particular should only be published if the person concerned has given their prior consent. The decision of the Lübeck Labour Court shows that claims for compensation are possible even in the case of minor violations.
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