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“And now everyone have a thumbs up and smile.” Fortunately, the executive-level commanded-participation in the image film remains fiction — at least legally speaking. Because every boss is bound by law to obtain approval from employees in advance if they are involved in a corporate video should participate or appear in it. And employees are also free to say no to this.
Employees can “agree” to the shoot in many ways:
And yet the following applies: Employers are on the legally safe side with a written declaration of consent. Because anything else cannot be proven in retrospect in doubt.
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Are you planning to film your employees for a brand video that will be publicly available later?
Then you'd better do your homework thoroughly beforehand. Who in advance
Not only does it protect itself against a potential dispute in court, but also promotes a positive working environment.
A signature on the list with the heading “Authorization for video shooting” is not sufficient to create a legally secure basis for video shooting with employees. While the Art Copyright Act does not provide a specific form for approval, the General Data Protection Regulation, or GDPR for short, which has been in force since May 2018, comes into play here.
Why
Because video recordings of employees are generally considered personal data be scored. And they may only be used expressly if a written permission exists (Art. 6 GDPR).
Although the interplay between GDPR and KUG is discussed again and again, it is recommended to consider the following points:
Tip for recordings with minors: Young people aged 16 and over, such as the children of your employees or trainees, are considered to be capable of consent — for all younger protagonists, you should obtain permission from their legal guardians.
Here you can find a free template for a GDPR-compliant written approval for using video recordings of employees.
You've shot a terrific clip that serves its purpose perfectly. But unfortunately, the paths between your company and one of the employees who have been involved as a protagonist are now parting ways.
Does it have to be re-shot now?
Is there written consent for video recordings Before, it is very difficult for (former) employees to undo them. This is shown, for example, by a ruling by the Federal Labour Court (Az.:8 AZR 1011/13): After leaving, an ex-employee no longer wanted to be seen in the company clip — but his unlimited written consent is still valid — the employer may continue to use the video.
Of course, there are exceptions where contributors rely on a infringement of their personal rights But the employer's interests — high costs if the video is shot again — weigh so heavily that the rights of use tend to remain with the company.
Special case: If an employee dies, the art copyright law applies again. Up to ten years after the death of protagonists from colleagues, it is possible to use the film material with a written declaration of consent, after which the relatives must give their consent again.
In some cases, recordings of employees may also be used without their express written consent. These exceptions are regulated in the Art Copyright Act KUG §23.
The use of employee recordings is permitted if
Be careful, not a free pass: In individual cases, the personal interests of employees and the interests of the employer are weighed up. Here, the law refers to so-called “legitimate interests,” such as an idealistic attitude of the person depicted, which must not be violated.
Overall, there is thin ice here, so to speak: A decision by the Cologne Higher Regional Court (Cologne Higher Regional Court, resolution of 18.06.2018, 15W 27/18) only gives the green light for journalistic recordings within the meaning of KUG §23 — the legal situation remains ambiguous for companies.
In case of doubt, you should therefore proceed in accordance with GDPR — and that means with written permission in advance — for video recordings in an advertising context.
Want a small example? Let's take a non-private — meaning commissioned by the employer — recording at the anniversary party, which is to be incorporated into the company's image film.
In principle, such filming is prohibited subject to permission.
In other words: According to the GDPR, filming — mind you, this means recording itself and not publishing — is prohibited for now, but can be
Still be allowed.
Filming is okay even without permission, because it's about the overall action. The employer's legitimate interests abolish the prohibition against filming subject to permission.
Written permission from the people filmed for an unlimited period of time is required in advance.
Important: Pure filming is not the same as publishing film footage for advertising purposes, as would apply in the case of an image video. While filming is expected in the context of reporting a company event, the publication of the recordings for advertising purposes must be specifically referred to and for this purpose written approvals get caught up.
Link the declaration of consent to film immediately with the invitation/registration. And in retrospect, only use recordings of small groups or individuals that include only those team members who have agreed in writing to film and publish them in an advertising context.
It is also possible, but not on a large scale: Conclude a contract with individuals that precisely regulates the rights to the images taken and usually also includes remuneration.
The advantage: In contrast to consent — which can be withdrawn at any time — such a contract guarantees legal certainty for the use of the sequence in the company video and cannot be withdrawn.
Set up signs: At major events, it is also good to announce the recordings and their intention to publish them at the event entrances — and to have detailed data protection information available on request.
The answer is: Jein.
Of course, it is possible to regulate participation and the legal situation in company video shoots through a passage in the employment contract. However, this should be checked carefully before the respective production is carried out in order to avoid legal chaos and duplication of permits.
What can also be problematic about this is that, as described, whether consent is actually effective is based, among other things, on the fact that it was given voluntarily. If this is linked to the employment contract, this could be doubted in retrospect.
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Disclaimer
The tips and contributions listed on Mozaik have been carefully compiled and researched to the best of our knowledge and belief. However, no claim is made to the completeness and exclusivity of the content. The information provided does not replace individual legal advice and is non-binding. There is no guarantee that the interpretations and views on legal topics set out here will be followed in the event of a dispute.
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