Can an employee make a right to be forgotten request in relation to their employer’s use of their image in a picture, or video?


It is a common practice for employers to ask employees if they would like to be included in a picture or a video, either for product advertisement or internal training.  Typically, when this occurs, the employer asks the employee to sign a release, waiver, or permission for the use of their image.

If an employee whose image was integrated in company material made a right to deletion request, the honoring of such request could cause significant disruption or cost to a company.  For example, posters, mailers, images, or advertisements might need to be recalled, deleted, or destroyed.

It is presently unclear how courts would deal with such a request once employee-deletion rights go into effect in 2021.  While an employer might point to the employee’s consent to have their image used, it’s possible that an employee would refer to a provision in the CCPA which states that “[a]ny provision of a contract or agreement of any kind that purports to waive or limit in any way a consumer’s rights under this title . . . shall be deemed contrary to public policy and shall be void and unenforceable.”1  Furthermore, it is not clear whether any of the nine exceptions to deletion within the CCPA would apply to the employee’s request:

Exception Application
1.    Complete the transaction for which the personal information was collected, provide a good or service requested by the consumer, or reasonably anticipated within the context of a business’s ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer.2 An employer might argue that the use of an employee’s image is the completion of a contract between the business and the consumer (i.e., the permission release).  The strength of such argument might depend, however, on whether the release is viewed as a stand-alone contract.
2.    Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity; or prosecute those responsible for that activity.3 It is unlikely that this exception would apply.


3.    Debug to identify and repair errors that impair existing intended functionality.4 It is unlikely that this exception would apply.
4.    Exercise free speech, ensure the right of another consumer to exercise his or her right of free speech, or exercise another right provided for by law.5 It is possible that the employer could argue that rights that it has to the material in which the image was included would be interfered with if the deletion request were granted.  As businesses do not qualify as “consumers” under the CCPA it is unclear how a court would respond to such an argument.
5.    Comply with the California Electronic Communications Privacy Act pursuant to Chapter 3.6 (commencing with Section 1546) of Title 12 of Part 2 of the Penal Code.6 This exception applies if a business has received a government request for the personal information of an individual under the terms of the California Electronic Communications Privacy Act.
6.    Engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the businesses’ deletion of the information is likely to render impossible or seriously impair the achievement of such research, if the consumer has provided informed consent.7 This exception likely does not apply.
7.    To enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the consumer’s relationship with the business.8 This exception is unlikely to apply if the material (e.g., photo or video) will be used external to the company.


8.    Comply with a legal obligation.9 This exception is unlikely to apply.
9.    Otherwise use the consumer’s personal information, internally, in a lawful manner that is compatible with the context in which the consumer provided the information.10 This exception is unlikely to apply if the material (e.g., photo or video) will be used external to the company.