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07/11/2019

DE: Destroy or use?

2B Advice
Companies have to deal with this question when using photos of employees in brochures and flyers, and one or more employees have revoked their consent to use the photos in brochures and flyers. Do they actually have to be destroyed despite the high costs for the company?
 

According to Article 7 (3) of the General Data Protection Regulation (GDPR), a revocation of consent will have an effect for the future (ex nunc). There has been much controversy so far as to whether legitimate interests of the company, in particular the high costs for the brochures and flyers, may be an obstacle to any revocations, and the existing brochures and flyers may still be used up despite the revocation. Incidentally, it was undisputed that in a new production the photos of the employee in question should not be used anymore.

In its 8th activity report, the Bavarian State Office for Data Protection Supervision (BayLDA) has published its opinion on a request regarding this issue. The opinion of BayLDA strengthens the position of those who want to balance the interests of those involved with regard to the question of the further use of the photos of the employee concerned.

In this balance of interests, the expense of producing the brochures and flyers must be taken into account in favor of the company. The further use of the already printed copies was considered acceptable by the BayLDA in the specific case, since the production costs were very high, the employee did not occupy a particularly prominent function in the company and the representation in the publications was likewise not particularly emphasized.

A revocation of consent to the use of employee photos in flyers and brochures of the company must therefore not always lead to the destruction of existing brochures and flyers. Rather, it may turn out in the context of a balance of interests that at least the existing flyers and brochures may still be used. The position of the employee concerned in the company and its presentation in the brochures and flyers must also be taken into account in this balance of interests and in the view of BayLDA in addition to the actual costs for the company.

Photo: © Olesia Bilkei - Fotolia

Further information:
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&
https://www.lda.bayern.de/media/baylda_report_08.pdf

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