Switch to facial recognition breached annual contract with patron who sued

A safari park in Zhejiang province has been ordered to pay 1,038 yuan ($158) in compensation to a customer for breach of contract after insisting annual members use facial recognition to gain entry following an upgrade to its admission system.

Guo Bing, an associate professor of law at Zhejiang Sci-Tech University, sued Hangzhou Safari Park in the Fuyang District People's Court in Hangzhou, Zhejiang province, last year over the collection and use of visitors' facial recognition details. The litigation is believed to be the first in China involving facial recognition technology as its use increases nationwide.

Guo paid 1,360 yuan in April last year to buy annual park memberships for him and his wife and agreed to use fingerprint recognition to enter the park. They provided their information, including ID numbers, fingerprints and photos, to the park, according to a statement issued by the court.

The park then upgraded its entry system to facial recognition and sent Guo two text messages to inform him of the change, the court said. The park said he needed to activate the facial recognition system to be able to gain entry.

After refusing to use facial recognition due to privacy concerns and failing to negotiate the cancellation of his membership with the park, Guo took the park to court in October. He said that after breaking the contract it should compensate him for his membership fee and transportation expenses and delete his personal information, the court said.

It said on Friday that although the commercial collection and use of personal information is not prohibited by Chinese law, it needs to adhere to the principle of being "lawful, justifiable and necessary", and the consent of the parties concerned needs to be obtained.

The court found that the park had unilaterally breached its contract with Guo by changing the method of entry from fingerprint identification to facial recognition, the court said. Guo disagreed with the change and, as the non-breaching party, had the right to ask the park to bear corresponding responsibility, it said.

The two parties had agreed in the contract to use fingerprint identification to facilitate admission, but the park also collected photographic information of Guo and his wife, which exceeded the "necessary principle" and therefore was not legitimate, it said.

The court ordered the park to pay 1,038 yuan in compensation for Guo's loss of contract benefits and transportation costs, and to delete the facial information Guo submitted when he applied for his membership.

Lao Dongyan, a Tsinghua University law professor, said the case is the first of its kind with social influence, and the judgment tells the public that the collection and use of personal biological information by business operators must first be agreed to by users.

"The law requires that information be collected on the basis of minimum necessity, which means collecting enough information to get the job done, but the reality is that business operators use the technology to collect as much information as possible for some other purposes," Lao said.

As facial recognition technology is widely used in many places in China, including shopping malls, office buildings and campuses, as well as mobile applications, "it's worth considering whether face recognition is really necessary in these situations as the data has a high risk of being misused", she said.

In the future, China will have a detailed and effective standard to define the situations in which the technology can be used, she said, adding that individuals should be aware of their rights when they are asked to provide biological information.