July 1, 2011

Company Facebook, Employee Faces — Is Consent Required?


Summer 2011

For the creative business owner, marketing and public relations opportunities through social media are inexpensive, effective, and endless. By using a company Facebook page, for example, a business can simultaneously communicate with existing clients, attract new clients, reach talented applicants, and release exciting news. But maximizing the full potential social media has to offer isn't easy. Businesses must actively manage their online image and focus on making connections and enhancing on-line relationships. What better way to emphasize a human link than to post pictures of the hard-working, happy people behind the scenes? From a public relations standpoint, it could be a great idea; from a legal standpoint, a potential landmine.

Though posting pictures of Employee Beach Clean-up Day may seem harmless, some states recognize claims against employers in these situations for violating employee privacy rights. For example, the state of California prohibits using "another's name, voice, signature, photograph, or likeness, in any manner…or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent." In other words, using an employee's picture on a company Facebook page to promote the business, without the employee's consent, could result in negative courtroom publicity. The state of Washington also recognizes private property rights for individuals and personalities. However, Washington's law is broader than California's in the sense that it protects employees even from non-commercial use of their photos.

In contrast, the state of Oregon offers no statutory protection for employees in this context. Common law fills the gap for certain celebrities, but it does not cover the average worker. For example, in Anderson v. Fisher Broadcasting Co. Inc., the Oregon Supreme Court suggested that common law may recognize a claim of wrongful appropriation of a right to publicity for "actors, athletes, or other performers." The Court elaborated in dictum that the claim would not be available to "a person whose image, with no established public familiarity, appears in a commercial context only incidentally, perhaps as one of several persons in a public scene, or otherwise under circumstances that plainly are not presented so as to convey any endorsement by that person." The Court's narrow description of when the claim is not available begs several follow-up questions: What if the image appears in a commercial context more than merely incidentally? What if the circumstance appears to convey an endorsement? What if the photo captures only one employee, as opposed to several in a public scene? Sans a mandate from the legislature or a case directly addressing these questions, an employer's actual liability for posting photos of employees online without consent is still uncertain. Therefore, although Oregon law does not expressly require employers to obtain consent before posting employee photos online, employers would be wise to implement this best practice before clicking "upload."

For more information on this topic, please contact marketing@jordanramis.com or call (888) 598-7070.


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