How to protect the employer from claims of employees regarding the use of their photos for advertising purposes
Konstantin Bobrov talks about how to protect yourself from a situation where a former employee claims compensation for the use of his image in advertising without his consent, gives examples of statements
Article 152 of the Civil Code of the Russian Federation tells us that it is impossible to use and publish an image (photo or video) of a citizen without his consent. This situation is used by many employees who, when they leave, begin to file a claim or through a court to demand compensation for lost profits (that is, the fee that they could receive for providing an image for advertising) and compensation for non-pecuniary damage.
Practice shows that many entrepreneurs face this problem. How to protect yourself from such requirements? Obviously, it is necessary to obtain written consent from the employee to use his image in advertising materials.
Thus, such consent is the most important tool to ensure the protection of the entrepreneur from the risk of litigation with the employee regarding the use of his image. The question arises: if consent was not obtained, can something be done?
The answer to this question is yes. Current jurisprudence assumes that such consent can be given by the employee through “conformative actions”, that is, actions that clearly indicate consent to the use of his image (for example, when an employee pronounces an advertising text on a video). We illustrate this agreement with examples from judicial practice.
L. filed a lawsuit against the employer to declare his actions illegal, compensation for lost profits and moral damage. He explained that he took part in the filming of an advertisement to promote the employer’s trademark, but he did not give any prior consent. Subsequently, the image of the plaintiff was massively replicated. However, the court found that consent was given through concrete actions – posing during filming. As a result, by the decision of the Judicial Collegium for Civil Cases of the Moscow City Court of September 12, 2017 in case No. 33-36381 / 2017, the claims were refused.
A former employee of the law firm filed a lawsuit demanding that he remove his image from the official website of the company, since, according to him, he did not give consent to this, and to recover compensation for non-pecuniary damage. In this case, the company was also able to prove that there was a contingent action by the employee. The testimonies of the workers helped in this, who explained that they were asked to prepare for the shooting (appropriately dressed and another), everyone was explained to refuse to participate in this, but no one refused. At the same time, everyone clearly knew that they would be photographed for the company’s website. As a result, the former employee was denied the claim (determination of the Judicial Collegium for Civil Cases of the Moscow City Court of March 2, 2017 in case No. 33-7516 / 2017).
In the third situation, the plaintiff did not demand any compensation from the company, but asked the court to oblige it to remove its images from sites, tangible media (recipes for multicookers), and also to stop distributing videos with it on the Internet. In this case, the company was also helped by testimonies of employee employees, who said that the selection of employees was carried out for the filming, everyone explained that you can take part at will. In addition, the plaintiff appeared in commercials during working hours, for which he received wages. All this indicates that the plaintiff, by his behavior, gave his consent to the use of his image. As a result, the court sided with the company (appeal ruling of the St. Petersburg City Court of January 21, 2015 in case No. 33-23306 / 2015).