High Court Responds To First Legal Challenge Of The Use Of Live Facial Recognition Technology

Today, in a seminal judgment handed down in relation to a claim for judicial review brought by Mr Edward Bridges, the High Court ruled that the South Wales Police use of live facial recognition technology ('FRT'), which has been trialled since 2017 was lawful even though no specific FRT law was or is in existence. The Court suggested this is the first legal challenge of its kind to be brought anywhere in the world.

Whilst it is crucial to recognise that the judgment is fact-specific, it appears that the Court found that the South Wales Police have deployed this technology in a proportionate and measured way, against a background in which Elizabeth Denhan, the Information Commissioner, expressed her deep concern about the rollout of live facial recognition technology by law enforcement and suggested in the proceedings that the categories of persons in the 'watchlist' with which the collected data was to be compared must be specified in law.

The key findings of the Court were as follows:

An image of a person's face is 'personal data' for the purposes of the data protection legislation; FRT involves the creation and processing of a biometric picture of an individual which requires 'sensitive processing'; Such processing affects an individual's privacy rights created by the ECHR and protected in the UK by the Human Rights Act 1998: it is more than taking a photograph in a public space; Such processing can be, and in this case was, compliant with ECHR privacy rights and data protection obligation on those collecting and processing personal data. In this instance this was because, in the context of historically wide common law powers available to the police to gather and use information to protect the public and keep the peace, the deployment of the technology by the South Wales Police has been in compliance with the Data Protection Act 2018; in adherence to the Surveillance Camera Code of Practice (as secondary legislation); and in accordance with extensive policies and procedures adopted by them - taken together these were considered by the Court together to be "legally enforceable standards". The judgment does not explore whether the policies and procedures adopted currently by the South Wales Police are...

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