In the case in question, it is debated as to whether the inclusion of a generic clause in employment contracts by which the employee expressly consents to the transfer of their image to carry out the company’s own telemarketing activities should be considered as null and void.
It should be recalled that current data protection regulations establish a general obligation to request consent for the transfer of data, with the exception, inter alia, of personal data of the parties to an employment relationship deemed necessary to perform the work in question.
Firstly, it analyses whether or not, in this specific case, the assignment of the employee’s image for the purposes of making video calls to attend to customers, would require their express consent. This will depend on whether or not it is considered as data necessary for the performance of the job.
In this case, the National High Court considers it is necessary to obtain the express consent of the employee to the assignment of their image, since, in practice, only 15 of the 6,000 employees provide video services, even though the applicable collective bargaining agreement (Contact Centre Collective Agreement) contemplates in its functional scope the activity of telemarketing via video calls. Therefore, it is considered that this video call activity is residual compared to the main activity of the company and due to its residual character, the Court considers that it cannot be understood that the image forms part of the personal data necessary for performance of the job. It, therefore, considers that the employer is not covered by the exemption from the obligation to request the express consent of the employee for its use.
Furthermore, once the obligation to obtain the express consent of the employee for the assignment of their image has been determined, the Court analyses whether the generic clause included in all of the employment contracts, even for those employees who do not make video calls, is sufficient for it to be understood that express consent has been given. The Court concludes that the assignment cannot be generalized in a standard clause and that express consent must be requested at the appropriate time and adjusted in a precise and clear manner to the specific service to be provided by the employee.
The conclusions reached by the National High Court in the aforementioned judgment, together with the future legislative changes expected on this subject matter, lead us to recommend extreme caution when drafting these clauses in employment contracts.