“人脸识别第一案”判决的法理分析

“人脸识别第一案”之所以备受瞩目,不只在于其涉及如何平衡个人信息保护与个人信息商业化运用之间的关系,更在于其涉及法律应当如何正当而合理地分配科技所带来的效益与风险问题。两审法院的判决认可信息主体的删除权,有值得肯定之处,但同时也有令人遗憾之处。两审法院的判决在价值取向上支持产业界,故而对现行法律做了有利于信息处理者的选择性解读。从社会效果而言,判决所传递的信息并不利于加强对个人信息的保护,既难以有效激励信息主体在自身信息权益受到侵害时积极进行维权,也无法对信息处理者的侵权与违约行为形成有力威慑。技术中立是个伪命题且具有误导性,因为技术不只处于科技系统之内,它也作用于现实社会并对之加以塑造。

Legal Analysis of the First Case of Facial Recognition in China

The first case of facial recognition in China has drawn wide attention because it involves not only the question of how to strike a balance between the protection and commercial application of personal information, but also the question of how the law should properly and reasonably distribute the benefits and risks brought about by science and technology. The judgments of the courts of two instances both recognize the natural person’s right to deletion, which is worthy of affirmation;meanwhile, there are also six defects in the two judgments. The judgments tend to support the interests of industrial development in terms of value orientation, and thus have made a selective interpretation of current law in favor of personal information processors. In terms of social effect, such judgments are not conducive to strengthening the protection of personal information, as they are unable to either effectively encourage natural persons to actively uphold their personal information rights and interests when they are infringed upon or form a strong deterrence against such infringements by personal information processors. In judicial practice, three questions relating to the trial of similar cases are worthy of thinking. First, how the judges should make a reasonable interest measurement in a case involving a new technology that can easily cause social risk and whether they can simply compare the conflicting interests represented by the two parties without considering real or expected risks? Second, in new-type cases, should judges make efforts to explore the basic trend of legal development in the corresponding field and try to make their own judgments in conformity with such trend? Third, how to consider consequences in the dealing of new-type cases, so as to truly achieve the unity of legal effect and social effect, and enable the judgment to have demonstrative significance that transcends the individual case? The so-called technology neutrality is a misleading pseudo-proposition because technology not only is within the system of science and technology, but also acts on and shapes the real society in which we live. Facial recognition technology has attracted the attention and caused the concern of the whole society because the public risk it brings overflows far beyond the science and technology system. At the legal level, on the one hand, if a developed technology is mainly used for committing crimes, the conduct of developing and using such technology may incur legal responsibility. On the other hand, if a technology can be used for both legal and illegal purposes, the seemingly neutral development and use of technology may become illegal under the condition that the actor has subjective knowledge or intention to help others commit an illegal act. With respect to facial recognition, three adjustments at the level of values need to be made in order to responsibly shape the development of technology. Firstly, to give all stakeholders the opportunity to participate in the process, and to actively consider the demands of all parties involved. Secondly, to fairly and reasonably distribute the benefits and risks brought about by technological development. And thirdly, to adhere to the value orientation of being people-oriented and empowering the people.