Do You Have Legal Consent to Post Employee Photos on Social Media?

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WAIT! Do You Have Legal Consent For Posting Your Employee Photos on Social Media?

Smart companies take a holistic approach to their social media marketing efforts.  With so much emphasis these days on harnessing employees to promote their employers via “employee advocacy” efforts, smart companies get their Human Resources department involved in setting strategy and making policies.  Related to those efforts to use employees in marketing is an employers desire to showcase “real employees” and not paid actors in social media campaigns, on websites, as well as printed marketing materials.  Unfortunately, having employee photos/videos on webpages and social media marketing campaigns is not as simple as a “click” of a camera.

Employees Have Privacy Rights

Though they work for a company, employees do have privacy rights regarding their own image, photo, identity and voice, particularly when others (like an employer).  While there is no federal law prohibiting employers in the United States from using employees for photos, videos, etc., there are many state laws restricting how an image/photo/video/voice can be used for commercial purposes.  These state laws use various labels, including “Right to Privacy”, “Right of Publicity”, and “Personality Rights.”  No matter what these laws are called, most provide that employee photos can be used once the employee consents to such use.  For example, see California Civil Code Section 3344 and Revised Code of Washington 63.60.010.

Employees May Make Other Demands or Have Other Objections

Even if an employee does not work in a state with one of these laws, an employee may have other concerns about appearing on the employer’s website, Facebook feed, and other marketing materials whether on-line or hardcopy.  One common question employees ask is if they will be paid for allowing the company to use their image?  Other employees are simply camera shy, or have other concerns.  Still others may have more serious objections including philosophical and/or religious reasons, or fear of stalking (particularly if a already a victim of stalking).  Employers should consider how to respond to such questions and concerns.

Additionally, concerns may center around what activity is being featured in the video/photo.  Employees may be fine with photos of themselves performing their job functions, are at a community service event, however they may object to photos at social events or the like.

Employers Should Obtain Prior Written Consent

To ensure that employers are complying with law, and also addressing employee concerns and objections, employers should obtain each employee’s consent, in writing, before proceeding.  Ideally, the consent will be sought and obtained prior to each time a photo/video, etc. of the employee will be used.  The consent should spell out, among other things, the purposes for using the photo/video, how the material will be used, that employee consent is completely voluntary, that the consent can be revoked, and the process for revocation.  Furthermore, employers should inform employees if they will be allowed to see the photo/video before it is used.

Employers should respect the decision of those who do not consent, and of course, avoid any retaliation, or pressure tactics to attempt to have the employee relent and consent.  Further, employers should avoid asking for details about why the employee has declined to consent.  If the employee’s answer is no, just leave it at that.

Some Other Practical Considerations

As always, in addition to legal issues, there are practical considerations.  And, of course, one of these practical considerations is about money and the company’s budget.  Employers who take a holistic approach should consider at the outset, that if an employee leaves the company, then the social media and marketing collateral will become obsolete.  The idea of having “real employees” is destroyed if the marketing materials contain images of “real former employees,” particularly if those former employees were fired for misconduct.  Indeed, while websites can be updated, and Facebook posts can be removed from newsfeeds, those images will never truly disappear from the internet, and will need to be replaced at some cost to the company.  And, the printed hardcopy materials should be replaced too.

Another practical consideration concerns the use of staff headshots.  These are typically on websites who routinely post employee headshots for the “about us” or “bios” pages, or other social media uses, like on company LinkedIn pages.  In these situations, it still makes sense to get prior written consent.  However, if the employees are asked to get their headshots done by the company, or a company vendor, and they know what the headshot will be used for, then their agreement to sit for the headshot ought to be at least as good as a written consent form.

Conclusion

Some individuals routinely over-share on social media, and may not have concerns about being included in company website and/or social media marketing efforts.  Others, however, may have such concerns, or develop them later.  As a best practice, employers can easily use a consent form to reduce liability risk.  Certainly, such consent forms must be used if state or other applicable law requires it.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.  No attorney-client relationship is created via this website.

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