In the area of labor relations, conflict relating to the use of an employee’s image is common and can also give rise to a wide range of different cases. In addition, due to the increasingly more frequent participation in promotional, commercial and marketing activities, the daily work of certain employees may produce conflict over the use of their image which, a priori, could be overlooked as it is less obvious.
The right of personal portrayal is established in article 18.1 of the Spanish Constitution and implemented by Organic Law 1/1982, of May 5, on the civil protection of the right to honor, personal and family privacy and to personal portrayal. The article not only regulates the manner in which civil protection of the right can be exercised, but also the type of intromissions that are deemed lawful. Furthermore, the recent application of the Data Protection General Regulations (RGPD) has also converted the issue into a matter for analysis by legal doctrine.
In this context, a judgment by the National Court questioned the increasing use in the contact center sector of video conference applications. Although the current criteria of the judgment would probably be different under the framework of the new regulations governing personal data resulting from the DPGR, it is interesting to analyze our case law criteria in this regard.
Although it could appear to be a practice that does not breach an employee’s right of personal portrayal and is tolerated and regulated in the applicable collective bargaining agreement, in the opinion of the National Court, this does not dismiss the obligation of requesting express consent, which must also take place at a very specific time during the labor relationship.
The judgment is based on the premise that the use or assignment of an employee’s image and voice is necessary to provide a service to clients, but concludes that, given the residual nature of the activity performed on video conference platforms of all the company’s activities (scarcely reaching 15 of the more than 6,000 defendant company workers), in addition to the fact that video conferencing is one of the multiple forms of providing contact center services contemplated in the sectorial bargaining agreement, the defendant company was not exempt from obtaining the employee’s prior express consent.
Having reached the conclusion that the request for express consent from an employee interacting through a video conference platform is mandatory, what must be determined is whether said consent can be obtained in a generic clause in his/her employment contract. The Court’s answer was no, on the following grounds:
- The assignment of data can in no way be subject to a standard clause in an employment contract, given that consent may be conditioned by the employee’s weaker position at the time it is granted.
- In the weighing up of interests between image and the providing of a service, the necessary caution must be taken to ensure that the employee suffers the “least sacrifice possible”, by adjusting the employer’s management authority to the criteria of reasonableness and proportionality.
Therefore, the National Court concludes that not only is it necessary to obtain express consent, but that said consent must take place upon providing the service by video conference, with the maximum information possible.
It is obvious that with the development of communications networks and the integration of technology into the workplace, this type of practice will become more and more common, which means that it is highly likely that we will shortly have a solid judicial position that will include an analysis of the legal foundations of the processing of personal data according to the PDGR catalogue.
Garrigues Labor and Employment Law Department