China's Highest Court Clarifies Judicial Rules In Civil Disputes Related To Face Recognition Technology

Published date02 August 2021
Subject MatterCorporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Arbitration & Dispute Resolution, Class Actions, Civil Law
Law FirmDentons
AuthorMr Jet Deng

On July 27, 2021, China Supreme People's Court released the Provisions on Several Issues concerning the Application of Law in the Trial of Civil Cases Relating to the Use of Facial Recognition Technologies to Process Personal Information (the "Judicial Interpretations"), which will be effective on August 1, 2021, and held a press conference on this. With the increasingly popular use of face recognition technology in daily life, privacy concern is becoming an important social issue. Related civil disputes also emerge, for example, a lawsuit brought by a law professor against a zoo for facial recognition in zoo pass. Therefore, China's highest court feels the urge to provide clarification on related legal rules.

The Judicial Interpretations confirm that facial information is "biometric information" which is a category of personal information under the Civil Code. Then, detailed rules on substantive issues are provided, particularly as to when a consent is considered valid to process facial information and when such processing is subject to civil liabilities under torts or contract law. The Judicial Interpretations also endeavor to facilitates plaintiffs' actions by clarifying some procedural rules, for example, the burden of proof, joint and several liabilities, available injunctions and scope of damages. It is also noteworthy that according to the press release, the Judicial Interpretations are also intended to bridge with the propsoed Personal Information Protection Law (the "PIPL"), which is still under deliberation and expected to pass in August.

  1. Substantive Rules: When Is Facial Recognition Allowed or Prohibited?
  1. Valid Consent for Processing Facial Information

In China, by now consent is the only legal basis of processing personal information under the Cybersecurity Law. However, in practice, what constitutes a valid consent is always controversial. In Article 4, the Judicial Interpretations make it clear that consents in the following forms would not be treated valid:

  • if the provision of products or services is conditioned on the consent, while such facial information is not necessary for providing the products or services;
  • a blanket consent that is bundled with other user authorizations;
  • other ways of forcing or forcing in a disguised manner to collect user consent.

Please note that after the PIPL is enacted, there will be other legal basis of processing personal information, such as for the conclusion or performance of a contract with the individual, and for the performance of statutory duties or for compliance with legal obligations. But for personal information controllers that would still rely on consent to process personal...

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