The right to one’s image, an aspect of the right to respect for private life protected by Article 9 of the Civil Code, covers the capture, storage, reproduction and use of a person’s image. The Court of Cassation has long held that the mere finding of an infringement gives rise to a right to compensation, without the employee having to prove any separate loss.
In this case, an employee had signed, during his employment, an authorisation allowing his employer to use his image, but the parties had not specified how long that use could continue ; his consent was given without any time limit. After the contract ended by mutual termination, the employer kept the employee’s clearly identifiable photograph on the company website.
The Court of Cassation upheld the finding that this gave rise to a right to compensation. Where an authorisation to use an employee’s image is silent as to its duration and is given without any time limit, it must be regarded as lapsing when the contract ends. The later use was no longer related to the performance of the contract, so in the absence of valid authorisation, publishing the photograph infringed the employee’s image rights (loss being presumed, according to earlier case law).
The decision is a strict one for employers : it is for the employer to secure, in good time, the authorisation it intends to rely on, and the absence of specific duration provisions will be interpreted in the employee’s favour. Employers should therefore specify, in any image authorisation, its duration, its scope (media, purpose and territory) and, if desired, its survival beyond the contract, and should systematically remove a departing employee’s images from public-facing materials.
