Caution: do not simply use an employee's portrait for advertising

An employer may not simply use an employee's portrait for advertising or on the website: explicit, preferably written, permission is required for this. If you publish a recognizable photo of an employee without that permission, the employee can invoke their right to their image and claim damages. The risk is particularly high in the case of commercial use (advertising, branding of company vans, social media), as the court will readily assume that the employee has a reasonable interest in objecting. Below, you can read how the right to one's image works, what a well-known lawsuit against a PostNL subsidiary teaches us, and how you, as an entrepreneur, can prevent claims.

What is portrait rights and when do they apply?

Portrait rights are the right of a depicted person to object, under certain conditions, to the publication of his or her portrait. It is regulated in the Copyright Act. In this context, a portrait is broader than a classic photograph: it concerns any recognizable image of someone's face or appearance, whether that be a photo, video, drawing, or even an image of someone from behind, as long as the person is recognizable.

It is important to distinguish between a commissioned and one that not . If someone commissioned the photo themselves, permission is generally required for publication. If the photo was not commissioned, publication is usually permitted, unless the person depicted can invoke a legitimate interest . This distinction is crucial for the employer-employee relationship: photos that you, as an employer, take (or have taken) of your staff are typically commissioned.

Is an employer allowed to simply post a photo of an employee?

No. If, as an employer, you wish to place a recognizable photo of an employee on your website, in a brochure, or on company vehicles, you require the express permission of that employee. Without that permission, the employee may object to the publication if they have a legitimate interest. In the case of commercial and advertising use, such a legitimate interest is almost always assumed in case law.

Under privacy legislation (the GDPR), it is also relevant that a recognizable photo is personal data. In the employer-employee relationship, “consent” is a shaky basis, because the hierarchical relationship means an employee does not always feel free to say no. This is all the more reason to arrange consent carefully, voluntarily, and demonstrably. If you want to know how to structure image usage in a GDPR-compliant manner, please also check our privacy and data protection.

The PostNL case: portrait on website and trucks

A striking example is a ruling by the District Court of North Holland from 2019, in a case against a logistics company within the PostNL group. An employee discovered that photos of him were on the website and that trucks had been plastered with stickers bearing his portrait. In the images, he appears recognizable and centrally positioned together with a colleague. According to the employee, his portrait had been distributed without valid permission, constituting an infringement of his right to his image.

The employer defended itself by arguing that the employee had indeed agreed. The core of the case subsequently revolved around two questions: was there valid consent, and if not, did the employee have a reasonable interest to object?

The burden of proof for consent lies with the employer

According to the law, consent does not necessarily have to be in writing, but in practice, this is strongly recommended. Otherwise, you face a difficult burden of proof, which is exactly what happened here. The judge emphasized that the parties disputed the scope of the consent and that the burden of proof rests with the employer. The employer must therefore demonstrate that valid consent was given.

An important and often underestimated point: permission to be photographed is not permission to publish, and certainly not to use it for advertising. According to the judge, the fact that the employee allowed himself to be photographed and cooperated in the creation of the image was insufficient evidence of consent for advertising distribution. Moreover, the judge assumed that the material was intended solely for internal use. The conclusion: there was no valid consent for commercial use.

The Discodanser ruling: legitimate interest in advertising

Even without consent, an employee can only object if he has a reasonable interest. For advertising, that interest is almost always present. This follows from the well-known Discodanser judgment of the Supreme Court (HR 2 May 1997). In that case, a professional dancer was depicted in an advertisement without his knowledge.

The rationale behind the Discodanser ruling: the public assumes that someone depicted in an advertisement supports the product or service. Consequently, the person portrayed becomes associated with that advertisement, and this infringes upon their personal sphere.

Because advertising use infringes upon the personal sphere, a person portrayed generally always has a reasonable interest in opposing such use. In the PostNL case, the judge ruled on this ground that the employee's objection was justified and awarded him compensation. However, bear in mind that the amount of compensation varies significantly from case to case and depends on, among other things, the nature and extent of the use; in this case, the compensation was in the order of several thousand euros, but do not count on a fixed amount.

What are the risks for you as an employer?

• Compensation. In the event of unauthorized commercial use, an employee may claim compensation for the use and any non-pecuniary damage.
• Removal and rectification. You may be required to take photos offline, remove stickers from vehicles, or modify printed materials, with associated costs.
• GDPR risks. A recognizable photo is personal data. Careless use can also become a privacy issue, separate from portrait rights.
• Reputation and employment relationship. A conflict regarding the use of images can unnecessarily strain the relationship with (former) employees.

How to properly arrange consent: a practical checklist

Do you want to use an employee's portrait for your website or advertising? Then record the permission in writing and concretely. Good permission (also known as a quitclaim) regulates at least:

1. Which portrait it concerns (which photos or images).
2. For which purposes use is permitted (e.g. website, social media, advertising, print).
3. On which media and channels the portrait may appear.
4. For which period and in which area the permission applies.
5. What happens upon termination of employment: may the image still be used, or must it be removed?
6. Whether the consent can be withdrawn and under what conditions.

By establishing this in advance, you prevent disputes later and stand in a strong position should a conflict ever arise. Moreover, ask for permission voluntarily and without pressure, especially given the power dynamics in the workplace.

Frequently asked questions about employee portrait rights

Am I allowed to keep a photo of a former employee on my website?

Not without further ado. If the original consent does not cover use after termination of employment, or if the employee withdraws their consent, continued use can become problematic. Therefore, arrange in advance what happens to the visual material upon departure and remove images promptly after termination of employment if in doubt.

Is verbal consent valid?

Oral consent can be legally valid in itself, but is difficult to prove in practice. Because the burden of proof lies with the employer, a written record is much safer.

Does portrait rights also apply to a group photo or a photo from behind?

It is about recognizability. If someone is clearly recognizable in a group photo or even from behind, portrait rights may apply. With a large, unrecognizable crowd, that is generally not the case.

Am I allowed to post a photo of an employee on LinkedIn or social media?

Social media also falls under publication. Especially for business and promotional posts, it is wise to ask for permission in advance and to document that permission.

What is the difference between portrait rights and the GDPR?

Portrait rights under the Copyright Act protect against the unwanted publication of your likeness. The GDPR concerns the processing of personal data, including recognizable photos. When using images of employees, both regimes often apply simultaneously.

Do I need permission for a photo of an intern or temporary worker?

Yes. Portrait rights do not depend on the type of contract. Even for interns, temporary workers, or freelancers who appear recognizably in images, you must arrange the use of images in advance and preferably in writing.

Need help with image usage and portrait rights?

Do you want to be certain that you are using an employee's portrait legally? Then have the consent drafted by a specialist. With a good portrait rights quitclaim, you establish who may use which image, where, and for how long, so that you avoid high compensation claims. If a broader issue regarding personnel is involved, our legal experts also offer advice from an employment law.

Are you unsure whether your situation poses risks, or are you already facing a claim? Schedule a no-obligation intake and we will look at the best way to proceed together.