The social chamber of the Court of Cassation, in a judgment of February 14th, 2024 (no. 22-18.014), recalls that the simple observation of the violation of an employee's right to image gives rise to the right to compensation.
1) Facts and procedure.
An employee worked as an lifestyle advisor, in charge of concierge functions, for the company American Express Carte - France.
Dismissed by letter of March 1st, 2017, the employee seized the industrial tribunal by request received on August 17, 2017 of various requests for salary and compensation, in particular for the violation of his image rights.
The Versailles Court of Appeal, in a judgment of April 21st, 2022, dismissed the employee's claims for damages for abusive use of his image rights in 2012 and 2015 on the grounds that he did not produce any documents useful in support of its claim, in particular not the criticized document, and therefore does not put the court in a position to assess the reality of the alleged infringement.
The employee then filed a cassation appeal.
The employee argues in support of his appeal that:
• the sole finding of an infringement of image rights gives rise to the right to compensation;
• that by rejecting his request for compensation for infringement of his image rights, on the grounds that he did not produce the criticized document, thereby not putting him in a position to assess the reality of the the alleged infringement, after noting that the employer had expressly acknowledged having distributed, to its clients, a brochure presenting the concierges, including a photograph of the face and one of the bust of each concierge and collective photographs of the latter, the court of appeal did not draw conclusions from its own findings and violated article 9 of the Civil Code.
2) Solution.
The social chamber agrees with the employee and overturns and annuls the judgment of the Versailles Court of Appeal.
The judges of the High Court begin by recalling that it follows from Article 9 of the Civil Code that
“the right that the person has over his or her image relates to its capture, conservation, reproduction and use, and that the mere observation of an infringement gives rise to the right to compensation.”
In this case, the Versailles Court of Appeal dismissed the employee's claims for damages in respect of his image rights, holding that the employee did not produce any useful documents to support his claim and therefore did not put the court in a position to assess the reality of the alleged infringement.
However, the company itself recognized the use of the employee's image on a brochure presenting the concierges, addressed to customers, produced from individual photographs of the concierges' faces and busts as well as collective photographs.
The social chamber censures this reasoning and considers that:
“By ruling thus, while the employer did not deny having used the image of the employee to produce a brochure addressed to customers, that the employee argued in his pleadings that he had not given his agreement to this use and that the mere observation of the infringement of image rights gives rise to the right to compensation, the court of appeal violated the above-mentioned text.
3) Analysis.
This judgment does not pose a new solution.
Indeed, the Court of Cassation has already had the opportunity to judge that the mere finding of an infringement of image rights gives rise to the right to compensation in a judgment of January 19, 2022 (n°20-12.420).
This specific judgment should attract the attention of employers: any use of employees' images requires their agreement, even if this image is used on brochures intended for the company's customers.
Furthermore, this judgment is interesting from an evidentiary point of view: the employee does not provide proof of the use of his image, but the Court considers that the finding of the infringement of image rights results from the own admission of the Company.
Sources
Cass. soc., 14 février 2024, n° 22-18.014.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde Fruton Létard élève avocate
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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