On the use of images of staff in advertising campaigns
To analyze the possibility of using images in which company personnel is shown, whether in photos, advertising videos, or social networks, it is essential to understand the concept of "image right" and its regulation at the national level.
In this regard, article 47 of the Civil Code states:
The photograph or image of a person may not be published, reproduced, exhibited or sold in any way without their consent, unless the reproduction is justified by the notoriety of the person, the public function they perform, the needs of justice or police, or when such reproduction is related to facts, events or ceremonies of public interest or that take place in public. Images and photographs with stereotyped roles that reinforce discriminatory attitudes towards social sectors cannot be published, reproduced, exhibited or sold in any way.
Said right has been developed in various rulings of the Constitutional Chamber and is defined as follows:
the one that empowers people to reproduce their own image or, on the contrary, to prevent a third party from capturing, reproducing or publishing an image without authorization (Resolution 2001-9259, Constitutional Chamber of the Supreme Court of Justice).
From the preceding, it is easily deduced that it is impossible to reproduce images or videos in which company personnel can be identified without their consent. Otherwise, you could face legal proceedings in which the worker can claim damages.
Therefore, it is crucial to have express acceptance by the worker before using his image in advertising campaigns.
In addition to the above, it is necessary to clarify that the company may only use the worker's image in advertising campaigns or expressly authorized media. In addition, the company may do so while the worker's consent remains in force. If the worker at a particular moment changes their mind about the use of their image in advertising content, it must be removed from the medium in which it was used. Therefore, it is recommended that once the employment relationship is terminated, the advertising messages containing the image of the staff are withdrawn or modified.
On this issue, the Second Chamber of the Supreme Court of Justice has indicated:
In this way, it is clear that in this case we are dealing with a fundamental right, constitutionally protected, which in this case must be seen from two perspectives. The first as a fundamental right, which implies that no one can commercially use or in any other nature without the affected person's permission. It is true that when the photographs were taken, the consent of the plaintiff was mediated, that is, they were not taken without her consent and uploaded to social networks without her knowing, so initially, as she herself admits, they were used in a legitimate way. The problem lies in its use once the employment relationship has ended, since from that moment on, Ms. [Name 001] is not willing to allow her photographs to continue being exhibited on the defendant's social networks, so since she has not granted an express authorization, its publication cannot be maintained (Resolution 2017-477, Second Chamber of the Supreme Court of Justice) (the highlighting does not appear in the original).
As additional information, the Constitutional Chamber has established three basic rules on the right to image:
Rules regarding image rights: Both the aforementioned norm and the decisions outlined by this Court can be derived as rules regarding image rights, the following:
- -1) there is a fundamental right to image derived from the right to privacy;
- -2) this right consists in the fact that the image of a person cannot be captured, reproduced or displayed without their consent;
- -3) the rule of consent of the right holder admits several exceptions, namely: a) those based on the limits of the principle of autonomy of the will enunciated in article 28 of the Political Constitution - morality, public order, damage to third - which obviously cannot be invoked in the abstract, but must be tied to a specific situation, giving them content, b) the notoriety of the person or public function that he performs, c) the needs of justice or police, and d) when such reproduction is related to facts, events or ceremonies of public interest or that take place in public (Resolution 2018-4340).
In short, the express and current consent of the worker is required for the use of his image in the media, social networks, or advertising campaigns. To carry out the preceding, it is recommended to sign an agreement in which the pictures and the media in which they will be used are precisely defined. In the agreement, it is necessary to determine if there will be any compensation for its use or if, on the contrary, the worker cedes the use of his image to the company for free. Finally, and to reduce the risk of possible claims, it is recommended to eliminate or modify the advertisements in which the image of the worker who no longer works for the company is included.
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