Can you use employee photos for marketing? Not without clear consent

A recent case from the NZ Privacy Commissioner, Case Note 329275 [2025] NZ Priv Cmr 2, is a timely reminder that good intentions do not always equal lawful use.

A company took a photo of a short-term employee during their factory work. The employee believed the photo was for internal use only. Two years later, after they had left the country, they discovered their image was being used widely in public marketing, including on the side of the building, in shopping centres, and in the company’s annual report.

The employee had not agreed to this. They were distressed. The Office of the Privacy Commissioner got involved.

Even though the company believed it had consent, the Privacy Act is clear:

✅ You must tell people how their personal information (including images) will be used

✅ You generally cannot use it for a different purpose without further consent or a lawful basis

The case was resolved through conciliation. The company apologised, reviewed its processes, removed the image, and paid compensation, including for psychological harm and legal costs.

Key takeaway for businesses: If you want to use staff images for external purposes like marketing, be explicit and get informed consent. A vague or one-off agreement is not enough.

If you are unsure what is reasonable or what needs to be documented, now is the time to tighten things up.

#privacy #dataprivacy #marketingethics #NZlaw #privacyact #businessrisk #datagovernance #consentmatters #obrienlegal