Using Employees’ and Customers’ Images: What a Company Can Publish

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Using the image of employees, customers, or third parties in advertising campaigns and on a company’s social media requires prior, express authorization. Publishing a person’s photos or videos without consent, or leaving them online after the employment contract ends, can lead to liability for moral damages (compensation for non-economic harm) and material damages, except in the narrow informational and journalistic situations that the law allows.

When You Must Have Authorization to Use a Person’s Image

A person’s image is a personality right, protected by Article 5, item X, of the Brazilian Federal Constitution and by Article 20 of the Civil Code. This means that a person’s photograph, video, and even voice belong to that person alone, and no one else may exploit them without permission. For employers and marketing managers, the practical rule is straightforward: before publishing the image of any identifiable individual in institutional material, advertising, a website, or a corporate profile, you need authorization.

The requirement covers not only employees but also service providers, visitors, customers, and event participants. Even if the photo was taken on company premises during working hours, the employment relationship does not automatically give the employer the right to use the worker’s image commercially. Brazilian labor case law is consistent on this point: an employee’s subordination to the employer does not authorize the use of the employee’s likeness in advertising.

Consent must be specific. A person who agreed to have a photo taken for an ID badge has not, as a result, agreed to the use of that same image in a paid social media ad. Each new purpose calls for new permission, or for a broad and detailed authorization that describes every intended use from the outset.

What an Image Consent Form Should Contain

The central protective instrument is the image use authorization form, a document the person depicted should sign before the image is published. To be valid and to prevent disputes, the form should be in writing, dated, and as detailed as possible. Oral consent, although legally possible, is weak in court, because it makes it hard to prove that consent was given and how far it extended.

A well-drafted form describes, at a minimum, the purpose of the use (an institutional campaign, product advertising, social media content), the channels in which the image will appear (website, Instagram, paid ads, printed material), the authorization period, and the territory of publication. The more precise the document, the less room the person has to claim later that the use went beyond what they agreed to.

Two points deserve extra attention from managers. The first is compensation: the form should state whether the image license is free or paid, which prevents later claims for retroactive payment. The second is the possibility of revocation. Because the image is a strictly personal right, the person can, as a rule, withdraw the authorization, and the form should provide for how this will be handled in practice, especially with respect to content that has already been published.

Since Brazil’s General Data Protection Law took effect, an image that can identify a person is also personal data. This adds another layer: the company must identify the legal basis for processing the data, normally consent, and be transparent about how it stores the material and for how long. A modern image release works together with the company’s privacy policy.

This means that a person’s photograph, video, and even voice belong to that person alone, and no one else may exploit them without permission.

Using an Employee’s Image After Termination

One of the scenarios that most often leads to judgments against employers is leaving a former employee’s image online after the employment contract ends. It is common for corporate videos, testimonials, and team photos to stay published for months or years after the worker leaves. Courts tend to treat this prolonged use as improper exploitation, especially when the person did not authorize use for an indefinite period.

Good practice is to tie the authorization to the length of the employment relationship, or to set a fixed term in the form. Once the contract ends, the marketing department should have a procedure for reviewing and removing material that features the person individually, especially promotional pieces. Failing to keep up this control is the most frequent cause of lawsuits over improper use of image in the Labor Courts.

There is an important difference between a photo in which the former employee is the star of the ad and a group image in which the person appears incidentally in the middle of a team. The first situation is the riskiest and calls for immediate removal. The second allows a more flexible analysis, but it does not remove the duty of caution, since the person may ask for removal even of group images.

When a company wants to keep using certain content after an employee leaves, the safe path is to negotiate a specific authorization at the time of termination, preferably paid and in writing. Including a generic image clause in the employment contract, without detail, rarely protects the employer, because courts tend to read such clauses narrowly in favor of the person who holds the right.

Journalistic Exceptions and the Risk of Damages for Publishing Without Permission

Not every use of another person’s image requires authorization. Freedom of information and of the press allows the publication of facts of public interest, of people in public places when they are part of a collective scene, and of public figures performing public functions. These exceptions, however, are narrow and should not be confused with advertising or commercial use, which is the typical case of corporate campaigns.

The dividing line is purpose. When the goal is to report on an event of public relevance, there is greater tolerance. When the goal is to promote a brand, sell a product, or build an institutional reputation, the purpose is economic, and authorization becomes indispensable again. A company cannot use a journalistic format to advertise, in practice, with the images of third parties.

Breaking these rules has a concrete cost. Unauthorized publication for economic purposes creates a duty to pay compensation even without proof of loss, according to the settled position of Brazil’s higher courts on the commercial use of a person’s image. On top of that, there may be material damages, calculated as the amount that would have been owed as a license fee, and an order to remove the content, backed by a daily fine for noncompliance.

To reduce exposure, employers and marketing managers should adopt a standard workflow: obtain the signed form before any publication, keep the documents well organized, tie use to the agreed time limits, and periodically review what is published. This simple routine turns image management into a safe practice and prevents most disputes on the subject.

Frequently Asked Questions

Does a company need authorization to post a photo of a company party on social media?

Yes, whenever identifiable people appear and the purpose is institutional or promotional. Even for internal events, the recommendation is to get prior authorization from participants, preferably in writing, describing where the images will be published. In theory, the lack of a form does not prevent the post, but it leaves the company without proof of consent if someone later challenges the use.

Can an image use form have an indefinite term?

It can, as long as this is clear and the person expressly accepted it. Even so, because a person’s image is a personality right, the person can usually revoke the authorization, especially once they no longer have a relationship with the company. That is why the safest approach is to set a fixed term, or to tie the use to the length of the relationship, with the document spelling out how the content will be removed.

Is using a customer’s image in advertising without paying considered improper use?

Use without payment is valid only if the person expressly agreed to it in the form. If there is no authorization, or if a promised payment was not made, the use is improper and can lead to compensation for moral and material damages, in addition to removal of the content. Formalizing the arrangement in advance, with a clear statement on whether payment is owed, is what prevents a later dispute.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.