In today’s digital world, showcasing your team on social media and your company website is a powerful way to build brand trust and attract talent. But before you post that photo from Friday’s team lunch or a behind-the-scenes video, it’s essential to understand the legal and ethical requirements around using employee images in New Zealand.

Why Consent Matters Under NZ Law

Employee photos are considered personal information under the Privacy Act 2020, which means employers must handle them with care and in good faith. Simply taking a photo at work doesn’t give you the right to use it for marketing or external purposes. The law requires:

• Clear, informed consent: Employees must know how their image will be used (e.g., on social media, in recruitment ads, or on your website) and consent must be given freely, without coercion.
• Specificity: A vague “we might use your photo” clause isn’t enough. State the exact platforms and purposes.
• No secondary use without consent: If you collected the photo for internal use, you cannot later use it for public marketing without fresh permission.

Failing to follow these rules can lead to complaints to the Privacy Commissioner, reputational damage, and even compensation payouts. This is why transparency and a clear ‘no-consequences’ approach to refusal are essential to comply with both privacy law and the good faith obligations under the Employment Relations Act 2000.

Best Practices for Getting Permission

1. Use a Photo Consent Form: A written consent form is the safest approach. It should include:
   • Where and how the image will be used (website, social media, print), with clarity on how group photos will be handled if an individual withdraws consent.
   • How long consent lasts.
   • The employee’s right to withdraw consent at any time, how this can be requested and a timeframe in which the employer will act on the request.
2. Include Image Use in Your Workplace Policy: Outline your approach in your social media or IT policy. Make it clear that photos require permission and specify who approves posts.
3. Communicate Transparently: Explain why you use images (e.g., to promote company culture) and reassure staff that their privacy matters.

Who Owns the Content When Employment Ends?

Ownership of the photo itself usually belongs to the company if taken during work for business purposes, under the Copyright Act 1994. However, the right to use an identifiable image which is considered personal information depends on the scope of the consent you obtained. If an employee withdraws consent or leaves the company, you may need to remove their image from marketing materials unless:

• The consent form explicitly allows continued use after employment ends.
• There is another lawful basis for retention (rare in marketing contexts).

Best practice? Plan for post-employment scenarios in your consent form. Include a clause stating whether images will remain in archived content or be removed upon request.

What Happens if You Get It Wrong?

Failing to respect employee image rights can lead to significant issues, including:

• Privacy Act Complaints: An employee can complain to the Office of the Privacy Commissioner. If a breach is found and not resolved, the matter can be taken to the Human Rights Review Tribunal, which can award damages.
• Personal Grievance: An employee could raise a personal grievance under the Employment Relations Act 2000 for a breach of the duty of good faith, especially if they were misled or pressured. Remedies can include compensation for humiliation and distress.
• Statutory Penalties: While less common for image use, the Privacy Act 2020 includes offences with fines of up to $10,000 for actions such as misleading an agency to access personal information or failing to notify the Commissioner of a notifiable privacy breach.

Key Takeaways for Employers

• Always get explicit, informed consent before using employee images externally.
• Document consent and allow withdrawal at any time.
• Review your policies to ensure compliance with the Privacy Act 2020.
• Consider updating your consent forms to cover post-employment use.

Need help creating compliant photo consent policies? We can get this sorted for you – contact us today.