Nothing is more engaging for a brand than giving its employees a voice to promote its products or employer brand. This employee generated content (EGC) should be done on a voluntary basis. However, some managers are insistent… Can an employee refuse this type of request? We clarified this point with Annie Bourgeois, labor and employment lawyer at Langlois Avocats.
Isarta Infos: Videos showing work life are increasingly popular. To the point that some employers are very insistent. From a legal perspective, can an employee refuse to appear in a video without fearing for their job?
Me Bourgeois: There are mainly two legal concepts that intersect in this question. First, we must consider the nature of the employer-employee relationship. In exchange for compensation, an employer has the right to ask an employee to perform tasks, but these are tasks that will generally be specified in an employment contract or job description.
Of course, the employer always has some flexibility on what they can ask for. However, in the vast majority of cases, it is not provided in the tasks of a typical job that an employee must participate in web content. For example, when applying for a receptionist or legal assistant position, we don’t expect, a priori, to have to participate in a promotional video as part of the normal scope of that task.
The other concept is the right to one’s image. Before publishing an image or video of an employee, the employer must have obtained explicit and specific consent for that purpose.
Going back to the first point, does this mean that an employer could require a social media manager, for example, to participate in web content, if it’s explicitly mentioned in their job description?
Me Bourgeois: We would need to analyze the specific context, but yes, in a situation where it’s provided in the person’s tasks, it could be perceived as insubordination not to do it, hence the right to disciplinary action.
Outside of this specific scenario, can employees feel legitimate in refusing to participate in videos or promotional content for products or employer brand?
Me Bourgeois: Insofar as the employee does not consent to the use of their image and it’s not part of their tasks, the employer doesn’t really have a legal basis to force them to participate in promotional videos.
In good management practices, the employer should have the reflex to ask whether they have obtained consent from their employees for these specific purposes. If not, they must take this step with their employees.
They must take the step, but they must also accept a refusal if necessary.
Me Bourgeois: Obviously. We must also keep in mind that employees don’t have the same relationship with all platforms. Asking employees to publish corporate content on their private Instagram account has an even more intrusive connotation for some than a repost on LinkedIn.
What is your perspective on the subject. Do you have the impression that companies have actually developed this reflex or that this consent is taken for granted?
Me Bourgeois: From a societal perspective, I believe there is greater sensitivity today about everything related to image rights, privacy protection and personal information. This concern has moreover influenced the adoption of Law 25 in 2022 on personal information management and the necessity, in several cases, to obtain free and informed consent.
Have all companies made this shift? I couldn’t say. One thing is certain, there is certainly awareness and effort going in that direction.
With the arrival of the Internet, it became quick and easy to publish information. In return, we now see a cultural change to ensure we respect everyone’s rights, including image and privacy rights.
