Handing down its verdict in China’s first court case over face recognition technology, the Fuyang District People’s Court in the eastern Zhejiang province found that Hangzhou Safari Park’s use of the technology without visitors’ consent to facilitate their admission into the park “illegal and unnecessary”.
The court also ruled that the park should pay the plaintiff 1,038 yuan (US$160) for a partial membership fee refund and compensation for travel expenses.
The verdict was handed down last Friday, a little more than a year after associate law professor Guo Bing from Zhejiang Sci-Tech University and his wife sued the park for violating China’s consumer rights protection law by collecting sensitive personal information without permission of its patrons.
The disagreement between the two parties started when the wildlife park upgraded its admission system from fingerprint to face recognition technology to activate visitors’ annual pass. Guo had his fingerprints and photo taken by the park in April 2019 for the previous fingerprint admission system, when 1 ,360 yuan (US$207).
The park then twice notified Guo last July and October about an upgrade of its admission system and required his facial recognition information for activation of the admission card.
He refused, saying he was willing to have his fingerprint scanned instead. When told that option was not available, Guo asked to cancel his annual card with full refund. He took the park operator to court last October after it rejected his request citing infringement of his privacy and breach of service contract.
In an interview with domestic media, Guo said at the time that he was taking a stand not for financial gain, but to “fight the abuse of facial recognition technology” in China.
The lawsuit sparked a heated debate over the widespread use of face recognition technology, which can now be found in shopping malls, residential complexes, schools, public transport, concerts and even beer festivals. It has become so ubiquitous that it has raised technical and ethical concerns among experts and the wider public.
In issuing a ruling in favour of the plaintiff, the court said the change in the park’s admission policies from fingerprint to face recognition during the contract period is a breach of contract, and added that text messages that the park sent to Guo could not be regarded as contract content agreed by both parties – hence, it had no legal effect on Guo, who has the right to require the park to shoulder related legal responsibilities.
Both sides eyeing an appeal
Guo and the safari park operation both decided to appeal the court ruling.
In an interview to publication SixthTone, Guo’s lawyer Ma Ce said that they were pleased with the verdict “to a certain degree” with the court confirming that it was illegal for the park to facial information without visitors’ consent, they had hoped the court would provide a guiding opinion on the use of face recognition technology.
“Personally, I think the court’s statements are mostly just discussing the case on its own merits without elaboration,” said Ma. Guo and his lawyer also disagree with other aspects of the court’s verdict, including that the park’s policy did not constitute fraud because it did not result in adverse consequences.
Ma said Guo will appeal the verdict, as the court had not supported some of his other litigation requests.
“We hope this case will push our whole society to come up with a more refined definition of the boundaries of collecting information as sensitive as fingerprints and facial features,” said Ma.
In an interview with Global Times last Saturday, Guo said "The most meaningful claim in my litigation was to confirm the invalidation of the park's notice to visitors about collecting their facial recognition information due to the new admissions system, which was overruled by the court."
However, Guo noted the court's ruling did not support his most important claim, which was to delete the facial recognition information, although his litigation also included requests to delete other biometric data such as fingerprints.
"It is a common phenomenon that the public have no incentive to defend their rights although the infringement of privacy is an illegal behaviour," said Guo, who noted that the verdict of breach of contract has almost no deterrence value for the park’s illegal action.
Meanwhile, the lawyer for Hangzhou Safari Park said the park is not satisfied with the court's verdict, and it will appeal to the Hangzhou Intermediate People's Court, according to a CCTV reported last Sunday.
Draft law seeks ban on the use of face recognition technology
Facial recognition technology has been in China for several years now. Initially adopted for security purposes in residential buildings, it is now being deployed in consumer applications such as paying bills, accessing cell phones and more.
To date, there is no law in China that regulates the use of biometric data such as facial images or fingerprints.
Hangzhou published a draft plan to ban facial recognition technology in residential areas last month. The draft law has now been submitted to the local legislative department, and a public opinion solicitation has begun.
The revised draft of municipal property management regulations stipulates that property management companies are not allowed to demand that residents submit to facial and other biometric scans when entering residential compounds.
If the draft is passed, it will be the first local law in China to ban the use of facial recognition technology in residential areas.