The assignment of image rights in the labor sphere

In today's society, advertising is a phenomenon that is found in all areas of our lives; when we read the newspaper, visit social networks and/or any web page. Thus, if a company does not advertise, it does not exist. Consequently, most companies are forced to carry out advertising campaigns (more or less aggressive), as a key point to achieve success of their products or services, and thus be able to differentiate themselves from the rest of the competition.

Therefore, many companies use their own employees as "actors" to promote their services or products. They become the image that represents the company for which they work, and who better than the workers themselves to be the visible face for potential customers, making the most realistic advertising to the services offered. However, the use of images of workers must comply with the guarantees established in Article 18 of the Spanish Constitution and its implementing legislation, being the Organic Law 1/1982 of May 5, 1978, on civil protection of the right to honor, personal and family privacy, and self-image; and the Regulation of 2016/679 on the protection of individuals with regard to the processing of personal data and the free movement of such data, as the rest of the regulations.

For we must not forget that we are dealing with a fundamental right defined by the Constitutional Court as "a personality right derived from human dignity and aimed at protecting the moral dimension of persons, which attributes to its holder a right to determine the graphic information generated by his personal physical features that may have a public dimension". It is the holder who has the exclusivity to disseminate or publish his image and therefore, to prevent the unconditional dissemination of his physical appearance, preventing the reproduction or publication of the image itself by a third party, whatever its purpose, commercial, informative, etc.".

In connection with the labor sphere, the right to one's own image is not unlimited, since workers must adjust or modulate it according to the particular characteristics: the existence of a power of direction exercised by the employer, the mutual duty of good labor faith existing between the parties, the particular relationship of subjection of the worker, among others. But the above does not imply that the execution of an employment contract deprives one of the parties, in this case the worker, of the rights that the constitution recognizes as a citizen.

In view of the above, it is necessary to pay attention to the particular way in which the right to one's own image is exercised within the labor relations, delimiting its scope and defining its protected legal framework. To this end, we cite Constitutional Court Ruling 99/1994 of April 11, 1994, which considers of essential interest "to coordinate the interests of the worker and the company that may collide with it (...) the object of the contract and the extent to which it required, or could be understood to require, in accordance with the requirements of good faith, the limitation of the fundamental right for the fulfillment and satisfaction of the interest that led the parties to enter into the contract. All this because it is clear that there are activities that bring with them, a necessary connection relationship, a restriction on the right to the image of the person who must perform them, by the very nature of these, such as all activities in contact with the public or accessible to it".

But it is the recent judgment of the Supreme Court 1436/2019, which marks the limits that were granted to the subject matter of the contract, to determine whether the employer in the case in fact, has exercised or not abusively its business powers over the use of the employee's image. The aforementioned judgment questioned the validity of the contractual clause that an employer included in the contracts signed by the employees at the beginning of the employment relationship. The National Court held that the clause was null and void for violating the employee's right to his or her own image and that such consent must be expressly requested when the person concerned is to be employed for video-call work, adjusting it to the circumstances of the specific case, without including the use of generic clauses.

The Court concludes that the clause is not abusive, but rather, it is informative and requires an express consent that was not required under the legislation in force at the time of the filing of the lawsuit, as is the case with current legislation. The law shows us that consent is not necessary today, nor was it then, when the data, the image, is transferred in the framework of the fulfillment of an employment contract whose OBJECTIVE RADIATES in the use of the image as an implicit condition of it. Therefore, the purpose of the contract and the natural exercise of the service that can be deduced from the fact that the employee must expose his image on behalf of the company to provide a better service must be taken into account. Therefore, the consent is implicit in the contract, since its object and the execution of this, is proper to the functional scope of the Collective Bargaining Agreement of application.

A different case would be if the company uses the image of an employee for commercial purposes, that is, for a marketing campaign in which a product or service is offered and the employee lends his or her image for that specific purpose. In this case, prior consent would be absolutely necessary for the employer to be able to make a legitimate use of the employee's image. In the aforementioned consent, the employee must be informed of the purpose of the assignment, the time during which the image will be assigned and the remuneration made for the mass. This must always be specified in a written document.

We are dealing with different activities because it is not the same to promote a product in a marketing campaign for the sole purpose of advertising, than to serve customers by giving them information about a product that facilitates its sale, through a video call being part of the object of the labor contract and complying with the collective agreement of application.

Guadalupe Tejela (Attorney T&L)

Article published in the October edition of the monthly newspaper CEHAT