Employee participation in corporate image film

Corporate image films are a popular means of presenting one's own business to the public. If employees are shown, their consent to the filming and exploitation of the material is necessary. The Federal Labour Court (BAG) had to decide what requirements must be met in terms of the form of consent and whether consent can be revoked after termination of the employment relationship.

In 2008, the defendant had a corporate image film produced depicting his company. Prior to this, the claimant – like 25 other employees of the defendant – had declared by signing a name list that film footage of his person would be "used and broadcast" freely within the framework of the defendant's public relations work. In the film, which was made publicly accessible on the defendant's website, the claimant appears in two brief sequences of two to three seconds each: once standing at a switch cabinet and once sitting on a chair. Subsequently, the video could be accessed and viewed through the defendant's new web presence linked from her homepage.

In September 2011, the employment relationship between the parties ended. The claimant then declared through his lawyer the withdrawal of his consent to the filming, whilst simultaneously questioning the formal validity of its granting, and demanded that the employer remove the video from the website.

Court decision

The BAG (Judgment of 19.02.2015, 8 AZR 1011/13) rejected the existence of claims by the claimant against the defendant for an injunction and removal of the film from the website.

Since the depiction of the claimant in the advertising film constituted "images" within the meaning of the Kunsturhebergesetz (KUG), the claimant's consent was basically required. Furthermore, both sequences showing the claimant did not constitute mere "incidental matter", since the location was not the focus and the depiction of the person did not play such a subordinate role that it could have been omitted without the subject and character of the images being changed.

However, the question arose as to what formal requirements the claimant's consent had to meet. Contrary to the claimant's submission, the form was not determined according to the Bundesdatenschutzgesetz (Federal Data Protection Act), which requires written form, as the KUG, which also permits an informal declaration, constitutes a special statutory provision.

However, a requirement of written form followed from the constitutional requirement of balancing between the interests of the parties involved. This flowed from the right of employees to exercise their fundamental right to informational self-determination even during the employment relationship.

By signing the name list with the heading "Subject: Film footage", the claimant had given his consent in written form and thus in the formally correct manner. This was also a purpose-related consent that was obtained in the individual case, clearly designated in a cover sheet attached to the name list, and not given in writing together with other declarations.

This consent did not lapse with the termination of the employment relationship, as it was granted for an indefinite period. On the other hand, within the framework of mutual consideration and following a balancing of interests in the individual case, it could be established that even a consent granted for an indefinite period could be revoked in a particular case, in particular after the end of the employment relationship and if the person had not received any remuneration for the consent. However, this presupposes that advertising is specifically targeted at the former employee as an individual or at his function within the company.

In the case of a general representation of the company in which the person and personality of the employee are not highlighted, his name is not mentioned and his personal identity is not otherwise emphasised, and in which the observer is not necessarily given the impression that these are current employees, it cannot be assumed that there is any economic or personality-relevant further exploitation of the image of the employee. Validly granted consent could not then be revoked solely on the occasion of the termination of the employment relationship.

In the result of the overall assessment to be carried out in such cases, it must rather be required that the employee seeking to revoke provides a reason in the form of a statement as to why he now wishes to exercise his right to informational self-determination in the opposite way, unlike at the time the consent was given years previously. The claimant did not provide a plausible explanation in this sense for the revocation.

Conclusion

If film footage is to be made in the context of an employment relationship, it is necessary to obtain the written consent of the employees. The employee can then revoke this consent after the end of the employment relationship only if the representation specifically concerns his person and personality, or if he can demonstrate that, unlike at the time of giving consent, his right to informational self-determination is affected in a particular way by the use of the footage today.