In recent years, "face recognition" as a new information technology has been widely used in various fields because of its accuracy and convenience of identification, and it has also been widely used in passenger identification in public transportation fields such as railway transportation enterprises.
Is it necessary to obtain the passenger's separate consent for the processing of sensitive personal information such as faces in the field of public transportation?What are the notification obligations of the transport authorities?
The following case provides useful enlightenment for clarifying the boundary between the protection of public interests and the protection of personal information.
The first case in the country!The use of facial recognition in public transport has led to disputes.
On November 25, 2021, Wang Moumou purchased a C6368 high-speed rail second-class ticket from Guiyang East Railway Station to Guiyang North Railway Station through the 12306 ticketing system. On the same day, when Wang Moumou entered the station at Guiyang East Railway Station to take the train, there was a manual ticket inspection channel and a self-service ticket inspection channel, and the station broadcast reminded passengers that they needed to hold their ID cards and take off their masks to brush their faces to enter the station.
Lai Jiajuan, judge of the Chengdu Railway Transport Intermediate Court, said: After purchasing a ticket, Wang Moumou entered the station after scanning his face through the self-service turnstile to check the ticket. Wang Moumou believed that the railway department had infringed upon her legitimate rights and interests by failing to make a clear notice in accordance with the law and not obtaining her authorization or consent when collecting her facial information, so she filed a lawsuit with the court.
On April 27, 2023, the Chengdu Railway Transport Intermediate Court heard the personal information protection dispute case between Wang Moumou and China Railway Chengdu Bureau Group in accordance with the law, which is also the first personal information infringement case caused by the use of facial recognition technology in the field of public transportation in China.
Plaintiff Wang Moumou believes that in the process of entering the station with her face with her ticket, the Chengdu Railway Bureau collected and stored her sensitive facial information.
Plaintiff's entrustment: After collecting and identifying facial information, the defendant did not inform the plaintiff whether the plaintiff's personal information was stored, nor did it inform the plaintiff whether the plaintiff's personal information was deleted.
During the trial, the Chengdu Railway Bureau issued a description of the face comparison process of the verification gate by the China Academy of Railway Sciences, stating that "during the verification process, the certificate ** read by the second-generation ID card reading device and the passenger scene ** collected during the card swiping were confirmed to confirm whether it was the person who passed the gate, and the entire comparison process was completed offline, and no ** was saved".
The defendant entrusted ** person: The self-service real-name verification turnstile in this case only uses face recognition technology to compare whether the person and ID are consistent, while our turnstile only uses the result of comparison, which is different from the zoo face brushing that the public is familiar with, and the community brushing face to enter the door, and the turnstile does not have a storage function.
Does the station store and transmit personal information in the process of processing?In order to ascertain this fact, the collegial panel of the case visited relevant technical experts and went to the electronic institute of the China Academy of Railway Sciences, the self-service gate program designer, to collect evidence.
Lai Jiajuan believes that through relevant evidence, it has been confirmed that in the process of passengers entering the station through the railway self-service gate, although the passengers' face information was collected, it was not stored, transmitted and other processing behaviors, and did not pose a major threat to the security of personal information.
There is no precedent to follow.
How to apply the passenger's personal information accurately.
The court found that, according to the relevant evidence, the defendant Chengdu Railway Bureau did not store and transmit personal information in the process of processing personal information, so whether it was illegal for the defendant to collect the facial information of the plaintiff Wang
Around this focus of controversy, the plaintiff and the defendant conducted a full court debate.
The Civil Code, personal information protection, and other relevant laws and regulations have built a relatively complete protection system for personal information based on the notification and consent rules, but there are no clear provisions on the protection of sensitive personal information, such as facial recognition information, in the context of public transportation. In the absence of precedents to follow, how to accurately apply and identify the rules for the protection of passengers' personal information in the field of public transportation is a "difficult problem" before the judge.
Plaintiff Wang Moumou believes that facial information is sensitive personal information, and according to the relevant provisions of the Civil Code and personal information protection, the processing of sensitive personal information should obtain the individual's separate consent, and the Chengdu Railway Bureau did not obtain his personal consent for the face recognition of the self-service gate entering the station, which infringed on his legitimate rights and interests.
Plaintiff's entrustment: Before the plaintiff carried out facial recognition, no staff member of Guiyang East Railway Station informed the plaintiff of the reason for collecting the plaintiff's facial information, nor did he see the posted notice to inform the plaintiff of the purpose and processing method of facial recognition, and no person or device had obtained the plaintiff's authorization or consent in advance when collecting the plaintiff's facial information.
Chengdu Railway Bureau believes that it is widely known that entering the station through the self-service real-name verification turnstile has been widely used in the field of public transportation. When Wang Moumou entered the station at Guiyang East Railway Station and took the train, there were manual ticket inspection channels and self-service ticket inspection channels. The plaintiff's choice of the self-service ticket verification channel can be regarded as an implied consent to the collection of facial information by the Chengdu Railway Bureau.
The defendant entrusted ** person: Since 2019, the railway department has begun to use self-service real-name verification equipment technology, and the self-service real-name verification turnstile has been widely used in the railway passenger service industry, and has carried out a large and extensive publicity through various types of public ** before the first use.
After trial, the court held that in accordance with the relevant provisions of the Anti-Terrorism Law, the Regulations on the Administration of Railway Safety, and the Measures for the Administration of the Real-Name System for Railway Passenger Tickets, railway transport enterprises have the legal obligation to conduct consistent verification and inspection of "tickets, people, and certificates" for passengers based on maintaining public safety.
Lai Jiajuan said: The railway department processes passengers' facial information based on fulfilling its legal obligations to maintain public safety, which is in line with the situation that personal information protection does not require the consent of passengers.
At the same time, the court held that the exemption from the obligation to obtain consent did not exempt the obligation to inform, and that the Chengdu Railway Bureau failed to perform the obligation to inform the purpose, method, and information processing of the passenger's facial information, and that there were deficiencies in notification.
Judge Chen Zhou of Chengdu Railway Transport Intermediate Court introduced: Although the inbound broadcast of "holding an ID card and taking off a mask" at the station involved in the case implied the meaning of "entering the station by brushing face" for face information verification, the content of the broadcast did not meet the relevant requirements of personal information protection.
Article 17 of the Personal Information Protection of the People's Republic of China stipulates that before processing personal information, personal information processors shall truthfully, accurately and completely inform individuals of the name or name of the personal information processor and the purpose and method of processing personal information, the types of personal information processed and the retention period, etc., in a conspicuous manner and in clear and understandable language.
The court held that in this case, facial information is considered sensitive personal information for biometric identification, and the personal information processor should also inform the individual of the necessity of processing sensitive personal information and the impact on the rights and interests of the individual in accordance with the provisions of personal information protection.
Cheng Xiao, a professor at Tsinghua University Law School, said that personal information protection is very strict for sensitive personal information, and it requires that there must be a specific purpose and sufficient necessity, including the processing of sensitive personal information, and the individual's separate consent must be obtained. In addition, personal information processors also have a higher level of duty of care for the handling of sensitive personal information. Because sensitive personal information, if leaked or illegally used, can easily cause damage to personal dignity and harm personal and property safety, the law gives very strict protection.
Significance.
Consent is not required but the obligation to inform is required.
Taking into account factors such as the Chengdu Railway Bureau's provision of passengers with the right to choose manual passages, multiple advertising notices, non-excessive use of facial information, and the impact and small damage caused to Wang by the defect in the obligation to inform, the defect in notification is not sufficient to constitute infringement alone. The court did not support Wang's request to order the Chengdu Railway Bureau to stop illegally collecting facial information, apologize, and compensate for losses of 800 yuan. After the verdict was pronounced, the parties did not appeal.
After the verdict of the case was pronounced, the Chengdu Railway Transport Intermediate Court sent a judicial recommendation to China State Railway Group***, suggesting that the processing of personal information should be clearly informed in a variety of ways on the Internet and at the entrance of the station. In August 2023, China State Railway Group officially replied to the rectification of the judicial recommendations, immediately urging railway transport enterprises across the country to take measures such as updating and optimizing equipment in a timely manner, and fulfilling the obligation to collect and inform facial information.
Chen Zhou said: After the verdict of this case was announced, the China State Railway Administration Group Company further improved the relevant notification obligations, updated the privacy policy through 12306**, set up reminder signs, provided artificial channels and other methods to meet the people's right to know and the right to choose.
Cheng Xiao said: Our country's personal information protection is actually aimed at protecting the rights and interests of personal information and promoting the reasonable use of personal information. An important significance of this case is that it clarifies that obtaining consent and fulfilling the obligation to inform are two rules. In this case, although the railway department said that it was not necessary to obtain the passenger's consent to conduct facial recognition, it should still fulfill the obligation to inform.