The lawsuit with Hangzhou Wildlife World Co., Ltd. (hereinafter referred to as "Wildlife World"), Guo Bing called: a "perceptual" lawsuit.
In October 2019, Guo Bing, a distinguished associate professor of Zhejiang Sci-Tech University, prepared a complaint in one day, and went to the court to apply for filing a case because he was not angry at Wildlife World forcing tourists to brush their faces.
One year and 23 days later, on November 20, 2020, the first instance of the "first case of face recognition in China" was pronounced: Wildlife World compensated Guo Bing for contract losses and transportation costs totaling 1038 yuan, and Guo Bing was deleted for the annual fingerprint card Facial feature information including photos submitted at the time.
Guo Bing was not completely satisfied with this result: the court only supported the deletion of facial features including his photos, and the four lawsuits claiming that fingerprint recognition and facial recognition-related format clauses were invalid did not get the court. stand by.
The judge believed that the content of the facial recognition format clause was only a unilateral offer issued by Wildlife World, and Guo Bing did not accept it, so it was invalid.
After the judgment of the first instance, Wildlife World still uses the standard clause that can only enter the park through face recognition, which makes this lawsuit to some extent a "victory without victory."
Guo Bing decided to appeal.
[Here is his dictation]
On the evening of October 17, 2019, I saw a text message from Hangzhou Wildlife World saying that the admission recognition system has been updated, and annual card users need to activate the face recognition system, otherwise they cannot enter the park.
I posted a screenshot of this short message to Moments, and complained that "this company's mandatory collection of sensitive personal information is getting too much."
I remember that when I applied for the annual card in April last year, I raised an objection, but because there were a lot of people in the annual card center on weekends, the children were crying, and my wife urged me to agree to fingerprint entry.
Originally, we wanted to buy a single ticket. The conductor saw that we were two adults and one child. It was suggested that the annual card for two persons would cost 1,360 yuan, and it would be used unlimited times within a year.
After I paid the fee at the ticket window, the staff immediately issued the corresponding invoice. In fact, the contract between me and Wildlife World has been reached; after that, I went through the card opening procedures at the Annual Card Center. I think fingerprint recognition is the only way to enter the park The method is obviously unreasonable.
In October, I received the notification of face recognition again. From a rational point of view, I was just complaining at the beginning, not thinking about going to the Wildlife World about this matter.
That night, I also forwarded the screenshot of the text message to a friend who works in the procuratorate, hoping to serve as a clue to the public interest litigation in the field of personal information protection.
It seems that just a text message notification as a clue to the public interest litigation is not enough. In case it is a fraudulent text message, I decided to go to the Wildlife World to find out.
On October 26, 2019, I invited a colleague who had worked in the court for many years to accompany me to the Wildlife World. I confirmed the authenticity of the facial recognition SMS notification with the staff of the Annual Card Center in person. The store announced The corresponding content is also clearly indicated on the above.
I asked the staff of the Nianka Center why the admission method of adult face recognition should be changed. The staff did not give a clear answer, but only emphasized the trend of smart scenic spots and smart tourism.
I asked who provided the facial recognition technology, but the staff did not inform.
In desperation, I said that I agreed to register for face recognition, but my wife did not agree. If my wife is unwilling to register for face recognition, wouldn't it have lost the meaning of the two-person annual card? I hope that a refund can be negotiated.
The staff of the Annual Card Center asked me to wait for the after-sales staff at the entrance gate to negotiate and deal with it.
While waiting for the after-sales staff at the ticket gate, my colleagues and I were surprised to find that the staff was using their mobile phones to scan the faces of tourists.
When the after-sales staff came to negotiate and return the card, I questioned the security of the phone's face scanning. The other party explained that the phone has been bound to the face recognition system, which is very safe.
The more I think about their actions, the more angry I become. I don't know if it is a government requirement or who provides the facial recognition technology. Employees can scan their faces with their mobile phones. I cannot accept these three aspects.
In addition, the refund plan given by the other party is to convert the single cost of admission into the park cumulatively, and refund if there is any remaining after deducting this part of the cost.
The single admission fee for two adults is four to five hundred yuan. According to this plan, it may be necessary to pay the Wildlife World.
Under emotional impulse, I spent one day preparing the materials for the prosecution the next day, and went to the court on October 28 to prepare the case.
Victory without victory
After arriving at the court, the staff member requested mediation before litigation after reading the materials. If the mediation is not agreed, the materials will not be accepted.
I actually don't agree to mediation, because I have already visited the wildlife world, so I can only accept pre-litigation mediation in order not to do it in vain.
After getting the contact information of the mediator, I called for two or three days in a row, saying that there was no room for mediation, and requested that the case be filed. The court hearing this case would be very meaningful.
I don’t know if the mediator was persuaded or annoyed. I received a notice of filing a case on November 1st last year.
The content of the initial complaint was very simple. The litigation request only included asking Wildlife World to compensate for the cost of the two-person annual card and to bear two litigation costs.
Friends of lawyers engaged in Internet legal services learned that I was suing and asked for my consent. They forwarded the screenshot of the complaint of this case to their official account, and proposed the first case of facial recognition in China for the first time.
On November 2nd, many friends contacted me "Mr. Guo, you are on the hot search". I was surprised at the time. I didn't expect that the repost of the friend's public account would cause so much attention.
After that, two of my lawyer friends expressed their desire to participate in this case, and I also agreed that they would provide legal aid.
In December of the same year, Wildlife World provided defense and evidence materials to the prosecution materials I submitted in October.
Based on their defense and evidence materials, I increased the number of claims to eight.
In accordance with the provisions of the Consumer Rights Protection Law, I have added four lawsuits claiming that the contents of the relevant format clauses in Wildlife World’s fingerprint recognition and face recognition are invalid.
In addition, I also added a litigation request to compensate for transportation expenses and delete all personal information submitted for handling and using the annual card under the witness of the third sub-technical agency.
Wildlife World stated in its defense and evidence materials submitted in December that when I applied for the annual card in April, I agreed to take pictures, which is equivalent to having agreed to face recognition.
I only agreed to take photos because the annual card was a real-name card, but the act of taking photos at the time was completely different from the meaning of face recognition.
According to the "Cyber Security Law" promulgated by my country in 2016, Chapter 4 Network Information Security clearly stipulates the right to delete personal information. Wildlife World illegally collected my personal information, which complies with the right to delete personal information in the "Cyber Security Law" condition.
In addition, Wildlife World suggested that before and after applying for the annual card, besides fingerprint recognition, there are many other ways to enter the park.
I have never been told that there are other ways to enter the kindergarten. At that time, my colleague assisted me in filming a video and it clearly showed that the staff told me that there was only one way to enter the kindergarten.
I also submitted the corresponding video evidence to the court.
Affected by the epidemic, the trial was held on June 15 this year. The verdict was supposed to be pronounced in early September this year, but the court later informed that the case was postponed for another 6 months with the approval of the president because the case was "difficult and complicated."
But in my opinion, this case does not meet the conditions for adjourned trial.
On November 20, the People’s Court of Fuyang District, Hangzhou City, Zhejiang Province, in the first instance ruled that Wildlife World compensated for the loss of contract benefits and transportation costs totaling 1,038 yuan, deleted the facial feature information submitted when applying for the fingerprint annual card, but rejected other claims.
I am dissatisfied with the result of this judgment and choose to continue the appeal.
In particular, the litigation request involving the invalid content of the format clauses of face recognition, I think this is not only to protect my personal legal rights, but the legal rights of other annual card users can also be indirectly protected.
The litigation request regarding the invalidity of the face recognition format clause was rejected. The judge believed that the format clause was invalid for me. It was only a unilateral offer issued by Wildlife World, which I did not accept.
He also believes that taking pictures to collect my facial feature information does not constitute fraud. It only supports the deletion of facial feature information, and the request to delete fingerprints and other identity information is not supported.
If the face recognition of wild animal time is a government-specified requirement, the corresponding technology provider is open and transparent, personal information has relatively transparent security measures, and the way to enter the park also provides diversified choices. I may not be against them The face recognition method of entering the park is so exclusive.
Judging from the results of the current first-instance judgment, Wildlife World can continue to adopt the "Overlord Clause" that can only enter the park through face recognition. The situation of forcing facial recognition will not be improved. Instead, they will force the annual card users more confidently. Brush your face.
This is also the reason why some of the legal friends said that they won the case, while others said they did not.
Individual struggle
After the judgment of the first instance, the appeal period is 15 days, and within 15 days, the judgment will become effective without appeal.
On the afternoon of November 29th, I mailed the appeal and supplementary evidence to the court. I hope the court of second instance can respond to the challenge of the challenge in the first instance of this case.
Some of the elder relatives in the family learned that I was suing Wildlife World, but they did not agree too much. It is not a good thing for them to file a lawsuit in their hearts. I also try to explain to them.
The entire prosecution process of this case was not difficult for me, but after the case received attention, many media came to interview me, which had some impact on my normal life.
Some of my classmates and friends in Hangzhou are also users of Wildlife World's annual card, including one of the lawyers representing this case.
They said to me, "Teacher Guo, I admire you very much, but we can't do it. Our family doesn't support it. We have to take children to play, because that place is really suitable for children to play." I have also mobilized. The classmates and friends around me sued, but in the end they did not convince anyone.
My child is still young and does not have a strong sense of autonomy.
But the children of classmates and friends are generally older, and may take the initiative to request to go to the wildlife world. This is why many of my friends can't stand the pressure and are unwilling to sue.
The distance from where I live to Hangzhou Wildlife World and Fuyang District Court is more than 50 kilometers. It takes more than two hours to drive back and forth, and the single transportation cost is at least one or two hundred yuan, which is very troublesome.
But I think this case is meaningful and I will try my best to spare time and work harder.
Because I think the first-instance judgment adopts avoidance strategies for many key issues, and there is no convincing explanation in the judgment, which should not be.
In the second half of last year, I gave students a course on legal practice. I would introduce some rights protection cases that occurred in law students. I told students that studying law must have the ambition to fight for rights.
I also hope to set an example for students through such a case.
I can be regarded as a more real person, and I have had some real experiences in the past.
But I am not going to be true to everything indiscriminately.
In 2018, I used an Apple phone to pay without password, and I was deducted many times for no reason.
In response to the infringement of the legitimate rights and interests of consumers in secret-free payment, I sued Apple.
The prosecution attempt was finally abandoned due to a series of reasons.
Prosecuting similar technology giants will find that the difficulty increases exponentially.
I have studied law for ten years. I have been engaged in law teaching and research in the university for nearly 5 years. I have a certain legal foundation.
If I have no legal knowledge at all, I would like to go to court to protect my rights in cases of infringement of personal information rights. It is a very challenging thing.
The "abuse" of facial recognition
After the "Personal Information Protection Law (Draft)" was publicly solicited for comments this year, I specifically put forward corresponding suggestions for the protection of biometric information. I believe that personal information processors must not store original biometric information.
In addition, I suggest that the threshold for the application of face recognition technology should be raised. In view of the obvious abuse trend of face recognition technology, the processing of facial feature information by face recognition technology should obtain corresponding administrative permission.
Recently, the Dongguan City Management Department responded to the free paper fetching equipment in public toilets involving facial recognition and coordinated to terminate the use of the equipment.
In a sense,
as long as any company wants to use face recognition technology, it can use it without any obstacles.
If a large amount of facial feature information is used for profit by illegal third-party technical service companies or related personnel, the adverse consequences will be far greater than the beneficial impact on public governance.
It is undeniable that face recognition technology will indeed bring convenience to the public to a certain extent.
But the view that "Chinese people are willing to trade privacy for convenience" is obviously problematic.
The large-scale collection of personal information by companies is usually not only for the convenience of users, but for a more comprehensive grasp of users' personal information, and to achieve commercialization purposes such as precision marketing.
When face recognition becomes the only authentication method, its inconvenience will emerge.
For example, a 94-year-old man in Hubei with limited mobility, activated his social security card, was carried to the bank and picked up for facial recognition.
I believe that in the
future, personal information protection should give priority to the security risks of biometric information, include facial recognition information and other biometric information into the special protection scope
, and conduct specific measures on public places or security issues where biometric information is collected in the name of public safety. For example.
When personal information encounters infringement, even people with a legal basis will not prefer litigation to resolve it, because litigation has thresholds and time-consuming efforts. It also involves financial investment.
But this does not mean that we choose to remain silent when our personal information rights are infringed. I think we can at least complain to the merchants and feedback the relevant situation. If you complain and give more feedback, you can also attract the attention of the merchants.
In addition, we can also complain to the relevant government authorities, and promote problem resolution through public authorities.
Intern Liu Yuxiu, surging journalist Ren Wu