How to protect "my face" when face recognition gradually loses influence
Assistant Judge Chen Xi
Not long ago, the customer v. Safari Park case, known as the "first case of face recognition" in China, has attracted much attention. Face recognition is a biometric technology for identification based on human facial feature information.
From AI "face-changing" technology to facial recognition payment, the application of facial information is becoming more and more extensive, but it is not uncommon for personal property losses and privacy and reputation rights to be violated due to the leakage of facial information.
What should I do if I encounter related problems and troubles in life?
The property compulsory "brushing face" to enter
Can the owner refuse?
【Case】
Ms. Zhang’s community requires all owners to go to the property to complete facial information collection, and inform the owners that entering the community through face recognition will be the only way to enter. If they do not cooperate with the collection and entry work, they will not be able to enter the community in the future.
[Interpretation]
Chen Xi, assistant judge of the Wang Siying Court of Beijing Chaoyang Court, explained that face information is sensitive personal information, and any collection or use of it should be clearly stipulated by laws and regulations or expressly authorized by the individual.
The processing of facial information by the residential property should seek the explicit consent of the owner or the user of the property, instead of requiring the residents to enter the facial information as the only verification method on the grounds of intelligent management, infringing on the residents' personality rights and interests.
To this end, the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases Related to the Use of Face Recognition Technology to Process Personal Information (hereinafter referred to as the “Provisions”) Article 10, paragraph 1, states: “Property service enterprises or other construction The property manager uses face recognition as the only verification method for the owner or property user to enter and exit the property service area. If the owner or property user who disagrees requests other reasonable verification methods, the people’s court will support it in accordance with the law.”
According to this provision, if the property manager uses the face recognition access control system, he shall obtain the explicit consent of the owner or the user of the property when entering and using the face information. For those who do not agree to use the face recognition information as the only verification method , Residential properties should provide alternative verification methods.
Face scanned at the airport
Can you refuse?
【Case】
Passenger Xiao Li is on a business trip, and if he is not informed or authorized to use facial recognition technology for facial verification, recognition or analysis when shopping at an airport store, will the store bear tort liability; however, if the airport epidemic management For the needs of epidemic prevention and control, relevant departments need to collect and recognize Xiao Li's face information. Can he refuse?
[Interpretation]
According to Chen Xi, Article 2(1) of the “Regulations” states: “If an information processor handles facial information in one of the following situations, the people’s court shall determine that it is an act that infringes the personality rights and interests of a natural person: (1) In hotels, shopping malls, Banks, stations, airports, stadiums, entertainment venues and other business places and public places violate laws and administrative regulations to use face recognition technology for face verification, identification or analysis..." According to this, in the above business places, without The use of facial recognition technology for facial verification, identification or analysis authorized by laws and regulations without the customer's permission will constitute infringement.
It is worth noting that if it is necessary to maintain public safety, for specific public interests, and to respond to public health emergencies or special emergencies, the processing of facial information does not constitute infringement.
APP to obtain face information
What should I do if I can register a user?
【Case】
Processing facial information is not necessary for a certain application software to provide products or services. When Xiao Chen registered the application software, he found that the application software registration interface displayed a series of registration electronic agreement terms, including terms for obtaining facial information.
There are only "Agree and Continue Registration" and "Disagree, Terminate Registration" buttons below the electronic agreement.
After Xiao Chen registered the software, the software entered Xiao Chen's face information without expressly indicating it.
If Xiao Chen later discovers that facial information has been collected and requires the application software operator to delete the facial information and bear the infringement liability, the application software operator should delete it, and cannot use Xiao Chen to register the software when he clicked "Agree and continue registration" The button is not deleted because, in accordance with relevant regulations, the application software operator should obtain the consent of Xiao Chen separately for obtaining facial information, and cannot wrap the terms of obtaining facial information in a package.
[Interpretation]
Chen Xi explained that the popularization and development of mobile applications have made it extremely convenient for people to easily enjoy handheld services such as handheld shopping without leaving home.
However, the shortcomings of mobile applications for the protection of portrait rights and privacy rights have gradually gained more and more attention.
Some mobile applications request non-essential personal information such as facial information and fingerprint information through a blanket authorization method such as "refuse to provide services without clicking consent" and bundled with other authorizations.
Frequent collection and improper use of personal information increase the risk of information leakage. In this regard, the "Regulations" adopt strict control rules for application operators to obtain the authority to process facial information.
Article 4 of the "Provisions" clarifies: "In any of the following circumstances, the people's court will not support the information processor on the grounds that he has obtained the consent of the natural person or his guardian: (1) The information processor requires the natural person to agree to handle the person. Only facial information provides products or services, except that the processing of facial information is necessary to provide products or services; (2) The information processor requires natural persons to agree to the processing of their facial information by binding with other authorizations, etc.; (3) Other situations in which natural persons are forced or in disguised form to agree to the processing of their facial information. "Because facial information is relatively sensitive and important personal information, which has a great impact on personal interests, it should be ensured that the person being processed clearly knows, The consent is given under the premise of full consideration, without any compulsive factors, in order to allow the information processor to collect and process his face information.
Information processors that improperly force or in a disguised form to force natural persons to agree to process their facial information shall be prohibited.
Encountered special personnel investigation
Ordinary people can refuse
Is face recognition?
【Case】
Wang is a criminal suspect in a robbery and murder case. A reliable source of information claims that he is waiting to escape by train at a certain railway station. The railway station requires passengers to perform facial recognition when passing through the gates to investigate the suspect.
Wang has no right to refuse face recognition when he passes the gates, nor to sue the railway station for tort liability after he is caught, because the collection and recognition of Wang's face information is based on the public interest of fighting crime.
Of course, with the continuous development and wide application of face recognition technology, the legal scope of processing face information may be further extended. Therefore, the "Regulations" contain comprehensive provisions that will "compliance with other circumstances stipulated by laws and administrative regulations." "It is also included in the scope of disclaimer of face information.
[Interpretation]
Chen Xi explained that the importance of face information determines that extremely strict regulations should be adopted for its processing.
However, it should be noted that the protection of personal rights and interests of face information still needs to consider two factors: the first is not to go against the protection of public interests; the second is to prevent the information processors from being over-charged and promote the rationality of the digital economy. Application and healthy development.
Therefore, Article 5 of the “Regulations” is clear: “In any of the following situations, where the information processor claims that he does not bear civil liability, the people’s court shall support it in accordance with the law: (1) To respond to a public health emergency or in an emergency Processing face information necessary to protect the life, health and property safety of natural persons; (2) To maintain public safety, use face recognition technology in public places in accordance with relevant national regulations; (3) Implement news reports and public opinion for the public interest Supervising and other acts that process facial information within a reasonable scope; (4) Reasonably processing facial information within the scope of the consent of a natural person or his guardian; (5) Other situations that comply with laws and administrative regulations."
Chen Xi said that in general, the basis for the rational use of face information generally comes from two aspects: the first aspect is based on public welfare, specifically including public health incidents or emergency situations to protect the life, health and property safety of natural persons. Facial information is processed in order to maintain public safety, and to implement news reports and public opinion supervision for the public interest; the second aspect is based on authorization, that is, based on the consent of the person whose facial information is processed or his guardian.
Illegal use of facial information
What can be claimed
property loss?
【Case】
A certain shopping application software collected the facial information of Lao Zhao without his consent, and adopted different marketing strategies by analyzing his gender, age, mood, etc.
After finding out, Zhao asked the application software to delete his face information and was rejected. Zhao hired a lawyer to investigate and collect evidence and spent 10,000 yuan.
Lao Zhao sued the application software operator to delete facial information and pay attorney fees, the court should support it within a reasonable range of expenditures.
[Interpretation]
Chen Xi explained that in accordance with the general provisions of the Tort Liability of the Civil Code, if the infringement of the personal rights and interests of others causes property losses, compensation shall be based on the losses suffered by the infringer or the benefits obtained by the infringer; the losses suffered by the infringed and the infringer shall be compensated accordingly It is difficult to determine the benefits obtained, and if the infringed and the infringer have inconsistent negotiations on the amount of compensation, and file a lawsuit in the people's court, the people's court shall determine the amount of compensation based on the actual situation.
However, sometimes information processors use face recognition to analyze consumer preferences and adopt different marketing strategies. In fact, it may not cause measurable specific property losses. However, the rights protection costs of the victim's hiring a lawyer, investigation and evidence collection may be relatively high. If this is not properly handled and balanced, it may result in a significantly unfair situation where the cost of defending the rights of the victim is significantly too high, and the cost of the infringer's violation of the law is significantly too low.
In this regard, Article 8(2) of the “Regulations” clarifies that “reasonable expenses paid by a natural person to stop infringements can be determined as property losses as specified in Article 182 of the Civil Code. Reasonable expenses include the natural person. Or the entrusted agent’s reasonable expenses for investigating the infringement and collecting evidence. The people’s court may calculate reasonable attorney’s fees within the scope of compensation based on the party’s request and the specific circumstances of the case. Reasonable expenses and reasonable expenses paid by the infringer to stop the infringement The attorney’s fees can be used as property damages to claim compensation."
Therefore, in addition to the actual losses and the benefits that the infringer can claim, the property losses that the victim can claim also include reasonable expenses paid to stop the infringement and reasonable attorney fees.
Text/Reporter Song Xia