PRIVACY: Are Employees' Photos on Your Company's Website – With Their Permission?
ELBG Update 5-21-2012
By Alan M. Kaplan
Carol has been an employee of Manufacturing LLC for 10 years. While demonstrating part of the production process, the owner took her photograph and later placed it on the company's website to show potential customers the products and the care with which they are made. Manufacturing LLC terminated Carol as part of a reduction-in-force. She has now sued the company, stating that she did not give consent to the company to use her photograph. She claims an invasion of privacy and wants compensatory and punitive damages.
In Illinois, as well as in other states, companies may be liable to employees for the tort of invasion of privacy as well as violations of state statutes regarding privacy and the right of publicity. The tort of invasion of privacy includes (a) an appropriation of another's name or likeness, (b) an unreasonable intrusion upon the seclusion of another, (c) a public disclosure of private facts and (d) publicity which reasonably places another in a false light before the public. Publishing Carol's photograph without her consent may well be an appropriation of her likeness for the company's use or benefit. As the courts have stated, the tort protects persons from having their image used for commercial purposes without their consent.
The solution is somewhat simple but needs to be done correctly. First, the company must obtain a written consent from the employee, if the company is going to photograph an employee or use their name or likeness. Use includes posting the photograph on the company's website, in its catalogue or by the company's public relations firm in publicity. The consent needs to identify the purpose of the use and the use has to be consistent with the stated purpose. The employee should assign his or her rights to the likeness and include a "hold harmless" clause in case the company distributes or alters the photograph to fit into a form of publicity or the page on the company's website. Second, every company needs to examine its publications, including its website, to determine if employees' photographs are being used. Please contact a member of the Employment, Labor & Benefits Practice Group for help in drafting a lawful consent.