Does your business use marketing materials with photos of current or previous employees?

If yes, you should ensure you have proper authorization from those employees.

It’s definitely easier to ask permission than to ask for forgiveness when it comes to the tort of misappropriation of personality.

The common law tort of misappropriation of personality recognizes an individual’s exclusive right to commercially use their own name, image, voice, and other components of personality that are associated with or identify that individual. If an employer uses an employee’s personality without the employee’s permission for commercial benefit, the employer could be committing the tort of misappropriation of personality. For the employer to be found responsible, the employee must be clearly identified.

An employee may give the employer permission expressly or impliedly. The Ontario Supreme Court in Horton v Tim Donut Ltd. held that the famous, late Tim Horton (a Canadian household name) impliedly assigned his publicity rights to Tim Donut Ltd. during his lifetime by allowing it to use his personality in the development of a business in which he was a partner. That said, permission may also be impliedly revoked such as following the termination of an employment contract.

Despite the fact that the majority of misappropriation of personality cases involve famous individuals, fame is not a prerequisite. In Hay v Platimun Equities Inc., the Court of Queen’s Bench of Alberta held that regular professionals can seek protection under this tort. The court commented “a professional’s name and reputation is entitled to be protected from unauthorized commercial exploitation every bit as much as a celebrity’s name and likeness”.

The Privacy Act of British Columbia (the “Act”) further protects the privacy of individuals. The Act states that an unauthorised use of name or portrait, including caricature, of another “for the purpose of advertising or promoting the sale of, or other trading in, property or services” is a tort, actionable without proof of damage. Under this statute, a former Wal-Mart employee was awarded $15,000 in damages after Wal-Mart used his photograph in its advertising without his permission. An interesting note is that the Act prevents any claim for wrongful appropriation upon death of the person, unlike the common law tort.

Key Takeaway

Employers should have appropriate policies and employee authorizations in place before using an employee’s photo or “likeness” for advertising.

If you have questions about how to best obtain permission for using an employee’s personality or likeness or any other workplace concerns, contact Angela Tenisci or a member of our experienced Workplace law team – we’re here to help.