Coincidentally, the General Union had recently received an e-mail from a teacher at another company (Joytalk) who had similar concerns about a comparable clause in their work regulations, too. In that situation, the company had granted themselves permission to record classes (and students) as they deemed fit.
Due to this influx of questions about the same topic, we decided to investigate the legality of such practices in more detail.
“YOU AGREE TO SIGN YOUR RIGHTS AWAY”
The offending clause in the Interac employment contract states:
Employee agrees that at any time during the term of this contract, Employee’s work may be photographed or video-recorded by Employer or Employer’s representative. Employee understands and agrees that such photographs and video materials may be viewed by Employer or its clients for assessment purposes or any business activities for Employer or its clients.
If you’ve ever worked for Interac, we’re sure that you’ve personally witnessed a branch manager or other member of staff quietly mounting a video recorder to a tripod at the back of the room in order to record an “ongoing training session” without ever asking anyone for permission to do so.
You’ve probably also experienced the annoyance of Interac staff skulking around with iPhones and iPads, sniping photos of “busy” people without their consent (to later show to various Boards of Education as proof of money well spent).
If you’re extremely unlucky, you may have even had a company bring a video-recorder to your school to film your class, deaf to any protests that you might have had about the invasion of privacy such an act represents.
In the case of Joytalk employees, a clause which enables this very thing is written into the company work regulations:
In this case, one has to wonder about the privacy rights of the school and its students along with those of the teacher who is being recorded. However, Joytalk dismiss such concerns with a wave of the hand; after all, they’re going to try to give you advance notice, so that (apparently) makes it okay.
These are just two examples, but we know that there are many more companies in Japan who have granted themselves the “right” to take video or photos of employees without their consent.
THE QUESTIONS THESE PRACTICES RAISE
All of these clauses and situations raise a number of questions:
Why are they recording video (or taking photos) of you? Why are they doing so on personal devices? What will happen to the recording(s) in the future? For what purpose will such recordings be used for? What if you want the data to be deleted? What about my right to privacy (even at the workplace)?
These are undoubtedly legitimate concerns for a person to have.
However, a teacher who inquires along these lines is likely to find that the company is deftly avoiding the topic; in other cases, asking such question might even result in hostility.
Does an employee even have a right to complain about this practice? They signed the contract, didn’t they?
To answer this, we submitted several questions to a lawyer for their legal opinion on the matter.
QUESTIONS AND ANSWERS – A LEGAL PERSPECTIVE
Here are the questions that we submitted with the answers that the lawyer gave us:
Q. Does a specific law cover employees being recorded for business purposes?
A. There is no specific law which covers this practice. However, when a company has no good reason to have camera at workplace, it falls under tort law, and is considered a violation of a worker’s right to privacy.
Q. Do companies have the right to record video of you for evaluation purposes and/or promotional preferences? Can you refuse?
A. It is said that videotaping is generally acceptable in order to prevent or witness crime (i.e. security cameras). However, I don’t think there is any precedent regarding “evaluation purposes”. Recording video of is basically unpleasant for workers, so there has to be a necessity for video recording(s) to be used.
In the case of teachers working for a dispatch company or eikaiwa, are there other ways to evaluate people (e.g. materials you make, from student feedback, etc.)? Recording video is not the only way for a company to do this, so let’s say that video recordings are not necessary.
It always matters what the real reason is, and it has to be determined based on objective situation – not based on what the company says. Criteria may include: the location of the camera is; which way the camera is facing; has there recently been lots of crime; etc.
The courts have said that recording people just to watch them is not a good reason for a camera to be there. In addition, if the camera is being used to specifically watch union activity, the tortfeasor may pay compensation under tort law (Matsuyama Dist. Ct. H21.3.25).
Q. Do companies need to give you notice or seek your consent in advance?
A. Recording you might be permissible if the company can prove that there is a “high business necessity”, but I can’t think of any situation or reason that would qualify for that. In any case, regardless of how much notice is given, recording video of someone without their consent definitely violates their privacy rights.
Q. Some companies have you sign a document that waives your right and allows the company to photograph you for advertising purposes. Can you refuse or later withdraw your permission?
A. Entering into employment contract does not mean that you have sold your rights to privacy (vis-a-vis publicity rights). In such occasions, you have a right to tell an employer that they cannot use your image for commercial purposes.
However, if a company has fully explained that they want to use your image for publicity purposes, and if you fully understood and agreed to allowing them do use your image for publicity purposes, it would be difficult to have them later retract the publicity material.
When you leave such a company, however, you can tell them to stop using your image.
In conclusion, it seems that a company cannot make you “sign your right to privacy away” just by including a clause in a contract that says that you agree to allow them to take video or photos of you without your prior permission.
In addition, a company has to have a very good reason to justify recording video of employees, and – even then – still needs to attain their written consent before they do so.
Finally, we learned that you have a right to ask an employer to stop using your image once you leave a company if you previously allowed them to use it for whatever purpose they explained they needed it for (i.e. promotional material, advertisements, etc.).
There is enough information here, then, to assume that such “you agree to let us record you” clauses are illegal and, therefore, invalid when placed under the scrutiny of the law.
In a nutshell: is it legal for them to record you without your permission?
CHOOSING YOUR BATTLES
That leaves one last question: if your employer plans to record video of you without your permission (or has already done so), what can you do about it?
In an ideal world, we would love to be able to tell you to just tell your employer that you don’t want to be photographed or recorded, and then they would agree to respect your privacy, and that would be that.
However, as the world is not as perfect as that, the unfortunate reality is that justice often has to catch up to a transgression (be it civil or criminal) before the situation can be resolved.
In the case of protecting your right to privacy, you first have to consider what the reaction from your employer will be towards you taking a stand, how much you care about your relationship with your employer, and how far you’re willing the fight the issue if your employer decides to ignore you and/or retaliate.
While the General Union is passionate about your rights, we also have to advocate the notion of choosing your battles carefully (because we really don’t want people to get themselves fired).
With that in mind, if you’re confident that your employer will listen to you (or you’re planning on leaving the company anyway), here’s what you can do:
If your employer is planning on recording you (or taking your photo), and you really don’t like it, politely inform them that you did not give them consent, and you would like them to not record you (or delete whatever material they have already gathered).
Mention tort law and your privacy rights if you have to, but make sure that you know what you’re talking about before you do (it’s likely that the person doing the recording / photography will not know these details, and that ignorance may cause embarrassment).
If your employer still refuses, your options are to refuse to cooperate (if they are taking the video), or to seek legal action (if they have already taken the video).
Both of these options require an employee to “push back”, however, so it is up to the individual to decide if that’s the course of action they wish to take.
If your wishes are still being dismissed and you wish to take things further, we would recommend speaking to a union for advice on how to proceed (which might also be a good idea to do BEFORE “pushing back”), or seeking actual legal advice (if you can afford it).
For some people, being photographed or recorded on video might not be such a big deal.
However, the fact that one person “doesn’t mind” does not give an employer justification to assume that everyone else “doesn’t mind” without actually asking them.
To quote Edward Snowden:
We feel the same way.