We will tell you about how to avoid such situations, when it seems that the employee agrees to use his photos, but at the same time some days later he will send to you the claim with the requirements to stop using these photos, because he did not give the permission. In his opinion this using is illegal.
First of all, we advise you do not rely on the verbal agreement with the employee or on the employee's conclusory actions. It can let you down, if an employee starts the dispute about it. Courts often decide in favor of employee.
In such labor dispute the absence of the written agreement by the employee about using his/her personal data may become the reason of pressure on the employer. For instance, the employee took part in a photo shoot, the main goal of that was the using photos on the company’s site. After dismissal the company continued using her photos, but the employee said sat she did not give the permission. According to the employer, the consent was given at the time of photo shooting.
No doubts, in this lawsuit the consent from employee of using her photos existed, but in the moment, when the employee quit, her consent was getting void.
As for the form of the consent, it must strictly comply with the requirements of the Federal Law “On Personal Data”. The employer cannot change this form, all requirements must comply with the legislation.
- Appellate ruling of the St. Petersburg City Court of 07.09.2023 N 33-16277/2023 on case N 2-6587/202207.09.2023 N 33-16277/2023 in case N 2-6587/2022
With regard to video monitoring the situation is different. Courts is siding with the fact that video recording is not the disclosure of employee personal data. Video camera was not hidden, the main goal of camera is the maintaining the archive control.
Moreover, it is impossible to force the person’s consent on the using his personal data, however, this measure is often necessary for companies to identify conflicts of interest. Because of it, there are unpredictable decisions from Courts in such cases. Much depends on what the circumstances were in that company's behavior.
Finally, we can say that there is the list of actions that you can do for protection yourself and the company in such situation:
- Consent by conclusory action, but sometimes it does not work, it is better to get the consent in the written form;
- Art. 88 of Labor Code contains provisions that transfer of personal data for commercial purposes may take place, but only with the written consent of the employee;
- According to judicial practice, Corts use the provisions of art. 10. 1 of the FL “On Personal Data” rarely;
- The moral compensation to an employee in cases of violation of personal data processing may reach 80,000 rubles.