Controversy, Protection, Legislation, and Implementation Regarding the Use of Facial Recognition Technology in Public Places (2nd Part) – A Case Study of China

15

October

2023

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1. Main Legislative Framework

Generally, Chinese law is primarily categorized into three parts: laws, departmental regulations, and local regulations. Additionally, the Supreme People’s Court of the People’s Republic of China can issue interpretations for specific legal issues that arise during the application of the law. The following overview primarily focuses on legislation at the national level in China, including some departmental regulations, local regulations, and judicial interpretations.

Serial NumberIssuing Level or DepartmentName of the LawDateMain or Related Provisions
1Shenzhen CityShenzhen Special Economic Zone Data RegulationsPassed in June 2021, effective from January 2022Clause 2(4) defines: “Biometric data refers to personal data derived from the processing of a natural person’s biological characteristics, including genetic information, fingerprints, voiceprints, palmprints, ear shape, iris, facial recognition features, and other data that can uniquely identify a natural person.”
2Supreme People’s Court of the People’s Republic of ChinaProvisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in Civil Cases Involving the Use of Facial Recognition Technology for Processing Personal InformationPassed in July 2021, effective from August 2021Article 10 stipulates: “If property service enterprises or other building managers use facial recognition as the sole verification method for owners or property users to enter property service areas, and owners or property users who disagree request them to provide other reasonable verification methods, the people’s court shall support it in accordance with the law.”
3Standing Committee of the National People’s CongressPersonal Information Protection LawPassed in August 2021, effective from November 2021Article 62 stipulates: “The Cyberspace Administration of China shall coordinate relevant departments to promote the following personal information protection work… (2) Formulate specific rules and standards for personal information protection, especially for small-scale personal information processors, sensitive personal information, facial recognition, artificial intelligence, and other new technologies and applications.”
4Hangzhou CityHangzhou Property Management RegulationsPassed in July 2021, effective from January 2022Article 50 stipulates: “Property service personnel may not force owners or non-owner users to enter the property management area or use common areas by providing biometric information such as facial recognition or fingerprints.”
5Shanghai CityShanghai Data RegulationsPassed in November 2021, effective from January 2022Article 31 stipulates: “Public places or areas referred to in the first paragraph of this Article may not use image collection or personal identity recognition technology as the sole method for entry or exit.”
6State Internet Information OfficeRegulations on the Secure Application of Facial Recognition Technology (Draft for Solicitation of Comments)Draft released for public comments in August 2023In accordance with Article 62 of the “Personal Information Protection Law” and other legal authorizations, the State Internet Information Office drafted regulatory provisions on facial recognition, mainly restricting the implementation of facial recognition in public places for purposes other than public safety.

2. Effective Control of Commercial Use of Facial Recognition in Public Places After the Implementation of Facial Recognition Laws and Regulations

Since the implementation of the aforementioned and other relevant laws and regulations concerning facial recognition, the misuse of facial recognition for commercial purposes in social public places has been effectively curbed.

For example, prior to the enactment of the aforementioned laws and regulations, a few public places’ access control systems only supported facial recognition for entry. However, after the passage and enforcement of the mentioned laws and regulations, access control systems in public places no longer exclusively rely on facial recognition. If facial recognition is used as a means of access, it must be complemented with alternative methods such as IC cards or keys.

Simultaneously, the mentioned laws and regulations classify facial information as a form of personal biometric data, falling within the scope of legal protection. Consequently, other laws and regulations related to safeguarding individual rights have begun to be applied to regulate the unlawful collection of non-consensual facial information by businesses for commercial purposes. For instance, in November 2021, the Market Supervision Administration of Xuhui District in Shanghai imposed a fine of 100,000 RMB on Shanghai Xiaopeng Automobile Sales and Service Co., Ltd. for unlawfully collecting facial information.

3. Conclusion

From the recent controversies, legislative developments, and judicial advancements in the past four years, it is evident that facial information is now widely acknowledged as a part of an individual’s biometric data and privacy. It has also gained legal protection. The misuse of facial recognition technology for commercial purposes in Chinese society has been notably curtailed.

Refference

1. Wu Huikang (2021), “Exploring Compliance Risks of Facial Recognition.” https://www.dehenglaw.com/CN/tansuocontent/0008/023125/7.aspx

2. Supreme People’s Court of the People’s Republic of China (2021), “Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in Civil Cases Involving the Use of Facial Recognition Technology for Processing Personal Information.”

3. Standing Committee of the Shenzhen Municipal People’s Congress (2021), “Shenzhen Special Economic Zone Data Regulations.”

4. Standing Committee of the National People’s Congress (2021), “Personal Information Protection Law.”

5. Standing Committee of the Hangzhou Municipal People’s Congress (2021), “Hangzhou Property Management Regulations.”

6. Standing Committee of the Shanghai Municipal People’s Congress (2021), “Shanghai Data Regulations.”

7. State Internet Information Office (2023), “Regulations on the Secure Application of Facial Recognition Technology (Draft for Solicitation of Comments).”

8. Market Supervision Administration of Xuhui District, Shanghai (2021), “Administrative Penalty Decision of the Market Supervision Administration of Xuhui District, Shanghai” (Shanghai Market Supervision Xuhui Penalty [2021] No. 042021000759).

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Controversy, Protection, Legislation, and Implementation Regarding the Use of Facial Recognition Technology in Public Places (Part One) – A Case Study of China

10

September

2023

No ratings yet. 1.Background

Facial recognition technology has been developed and used for many years. However, with the increasing maturity and widespread use of generative AI technologies in recent years, facial recognition technology is increasingly incorporating generative AI techniques (AI and the LinkedIn community, 2023). Therefore, facial recognition is one of the application areas of generative AI.

But it is precisely with the maturation and widespread use of facial recognition technology, especially as generative AI further enhances the accuracy of facial recognition, that people are becoming increasingly concerned about the infringement and challenges to personal privacy posed by facial recognition technology.

This blog and a subsequent blog review the recent controversies, protection measures, legislation, and legal implementations concerning facial recognition technology in China. It explores the challenges to personal privacy posed by generative AI and facial recognition technology, as well as how governments and society should regulate facial recognition technology.

2.Content
In China, with the development and maturation of facial recognition technology, an increasing number of institutions and individuals are using facial recognition technology in public settings for various purposes. However, concerns among the general public about the invasion of personal privacy by facial recognition technology have been growing as the widespread application of this technology continues to increase. Especially, the final judgment in the case where Guo Bing filed a lawsuit against Hangzhou Wildlife World Co., Ltd. over facial recognition disputes, this final ruling is expected to push the controversies surrounding facial recognition to a climax.

In April 2021, the final judgment of the Hangzhou Intermediate People’s Court in Zhejiang Province ((2020) Zhe 01 Min Zhong 10940) held that: “Regarding the facial recognition information collected by Hangzhou Wild Animal World from Guo Bing and his wife, Hangzhou Wild Animal World argued that it was for the preparation of future entry into the park using facial recognition. The first-instance court considered that the service contract signed by the contracting parties when applying for the annual card was for entry into the park using fingerprint recognition. Hangzhou Wild Animal World’s collection of Guo Bing and his wife’s facial recognition information exceeded the requirements of necessity and lacked legitimacy. Although Hangzhou Wild Animal World specified in the ‘annual card application process’ related to fingerprint recognition that the process included ‘taking photos at the annual card center,’ it did not inform Guo Bing and his wife that taking photos would constitute the collection of their facial recognition information and its purpose. Guo Bing and his wife’s agreement to take photos should not be regarded as consent for Hangzhou Wild Animal World to collect their facial recognition information through photography. Therefore, Guo Bing’s request for Hangzhou Wild Animal World to delete his personal facial recognition information is reasonable and should be supported.”

At that time, although China had not yet enacted explicit laws and regulations regarding whether facial feature information was considered personal privacy, the Hangzhou Intermediate People’s Court in Zhejiang Province determined from the perspective of contract law and necessity that Hangzhou Wild Animal World Co., Ltd. lacked contractual support for collecting Guo Bing and his wife’s facial recognition information and that such collection was not necessary. This ruling marked the first time that facial features were recognized as part of an individual’s privacy and protected under Chinese law.

In July 2021, at the suggestion of Guo Bing himself and under the influence of the Guo Bing case, Hangzhou City in Zhejiang Province, China, passed a revised “Hangzhou Property Management Regulations.” Article 50 of the regulation stipulates: “Property service personnel shall not compel owners or non-owners to enter the property management area or use common areas through the provision of biometric information such as facial recognition or fingerprints, shall not disclose the personal information of owners or non-owners obtained during property services, shall not compel owners or non-owners to purchase goods or services provided or designated by them, and shall not infringe upon the personal and property rights of owners or non-owners.” This regulation marks the first time that, from a legal perspective, facial feature information is explicitly recognized as a part of an individual’s biometric information.

In my second blog post, I will provide a detailed explanation of the subsequent legislative developments in China regarding the use of facial recognition technology in public places, as well as the implementation of measures to protect facial feature information.

Sources:
1. Hangzhou Intermediate People’s Court in Zhejiang Province, “Judgment of the Second Instance in the Civil Dispute between Guo Bing and Hangzhou Wild Animal World Co., Ltd.” （2020） Zhe 01 Min Zhong 10940（(2020) 浙01民终10940号). Available at: China Judgments Online.

2. Hangzhou Municipal Rental Housing Security and Real Estate Management Bureau, “Hangzhou Property Management Regulations”. Available at: http://fgj.hangzhou.gov.cn/art/2021/9/13/art_1229265384_1797924.html

3. People’s Daily Online, “People’s Daily Commentary: Extraordinary Significance of the Final Ruling on the ‘First Facial Recognition Case'”. Available at: http://opinion.people.com.cn/n1/2021/0410/c223228-32074599.html.

4.Powered by AI and the LinkedIn community（2023）. How can you use generative AI to improve facial recognition accuracy? From LinkedIn.com: https://www.linkedin.com/advice/3/how-can-you-use-generative-ai-improve-facial

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