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With digital technology making it easier to disseminate everyone’s image, judges are taking care to ensure that this right to image is respected, even going so far as to consider that its infringement by the employer alone justifies the right to compensation.
Article 9 of the Civil Code is unequivocal: “Everyone has the right to respect for his private life”.
On the basis of respect for private life, the judges of the Court of Cassation have held that “the right that a person has over his or her image relates to its capture, conservation, reproduction and use” (Cass. Soc. 14 February 2024 no. 22-18.014; Cass. Soc. 19 January 2022 no. 20-12.420).
Thus, the protection of image rights is not limited to the dissemination of the employee’s image and requires particular attention in order to avoid any risk of legal action.
In order not to infringe the employee’s right to his or her image, it is necessary to obtain the employee’s prior written consent before capturing, retaining or distributing his or her image.
The use of an employee’s image is subject to obtaining the employee’s consent (Cass. Soc. 14 February 2024 no. 22-18.014).
This agreement protects against any risk of legal action for infringement of image rights.
This written authorisation, signed by the employee, can take several forms: a clause inserted in the employment contract, express authorisation, etc.
While the form is of little importance, the content of the authorisation is. The wording must be as clear and precise as possible in order to avoid and put an end to any debate surrounding an alleged infringement of image rights.
If the employee’s image continues to be broadcast after the employment contract has been terminated, it is essential to obtain the employee’s prior authorisation to broadcast his or her image after the contractual relationship has ended.
In the absence of such authorisation, the employer must ensure that the employee’s image is removed from all visuals, failing which it may be liable to prosecution.
The Court of Cassation has ruled that the use of the image of several employees, without authorisation and after the termination of their employment contract, gives rise to a right to compensation, even if the employer rectifies the situation during the proceedings by deleting the disputed photograph (Cass. Soc. 19 January 2022 no. 20-12.420).
Recently, the judges of the Cour de cassation (French Supreme Court) have reiterated that the mere fact that an employee’s image rights have been infringed gives rise to a right to compensation, without the employee having to prove the existence of any prejudice (Cass. Soc. 14 February 2024 no. 22-18.014).
This position appears to apply to the use of the employee’s image after termination of the contractual relationship (Cass. Soc. 19 January 2022 no. 20-12.420), but also to its use during the contractual relationship (Cass. Soc. 14 February 2024 no. 22-18.014).
Thus, the mere fact that an employee’s image rights have been infringed is sufficient to give rise to a right to compensation. If the employee has not given his express consent to the capture, storage and use of his image, he may seek an order that his employer pay him damages.
Finally, after abandoning the theory of “necessary prejudice”, the Cour de cassation continues to identify numerous exceptions, for which the right to compensation is independent of proof of prejudice by the employee.
For the time being, these exceptions mainly concern breaches of the rules on working hours, but infringements of image rights are another example.
As a result, greater vigilance is required with regard to authorisations relating to image rights, at the time of recruitment, during contractual relations, and also at the time of termination of the employment contract.