China: Supreme People’s Court Issues Judicial Interpretation Against Misuse of Facial Recognition Technology

On July 27, 2021, China’s Supreme People’s Court (SPC) issued a judicial interpretation (JI) entitled Provisions of the SPC on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving the Processing of Personal Information Using Facial Recognition Technology (Provisions). (Press release in English.) The JI sets out guidelines for the use of facial recognition technology and protection of people’s identities and privacy in civil disputes. The JI took effect on August 1, 2021.

The JI was formulated in accordance with a series of Chinese laws, in particular the Civil Code, the Cybersecurity Law, the Law on the Protection of the Rights and Interests of Consumers, the E-Commerce Law, and the Civil Procedure Law, as well as based on the courts’ judicial practices. (Provisions, preface.)

Article 1 of the JI confirms that facial information is “biometric information” specified under the Civil Code. According to article 1034 of China’s recently enacted Civil Code, personal information that can be used to identify a specific natural person includes the name, date of birth, identification document number, biometric information, address, telephone number, email address, health information, and whereabouts of the natural person.

According to the JI, it is an infringement of individuals’ personal rights if, in violation of laws or administrative regulations, any business places or public places—hotels, shopping malls, banks, transport stations, airports, sports venues, entertainment venues—use facial recognition technology to verify, identify, or analyze faces. (Art. 2.) The JI also specifically stipulates that property management companies cannot use facial recognition as the only verification means for homeowners or property users to enter or exit the property. (Art. 10.)

Article 41 of China’s Cybersecurity Law requires that consent be obtained for processing personal information. What constitutes valid consent, however, has been controversial in practice. Article 4 of the JI clarifies that consent for processing facial information in the following forms would not be treated as valid:

(1) Conditioning the provision of products or services on the consent when facial information is not necessary for providing the products or services.

(2) A blanket consent that is bundled with other user authorizations.

(3) Other ways of forcing, or forcing in a disguised manner, the collection of user consent.

The JI also provides exemptions for information processors from civil liabilities, such as processing facial information in response to a public health emergency (e.g., the COVID-19 pandemic), or using facial recognition technology in public places for the purpose of maintaining public security (e.g., the government’s surveillance system). (Art. 5.)

According to the SPC press release, from July 2010 to December 2020, courts throughout China heard 1.14 million disputes relating to people’s personality rights, and resolved 1,678 privacy-related cases between January 2016 and December 2020. From June 2017 to June 2021, Chinese courts heard 10,059 criminal cases involving infringement of personal information.

Updated August 19, 2021.

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