On November 15, 2019, the French Supervisory Authority (“CNIL”) published guidance on the use of facial recognition. The guidance is primarily directed at public authorities in France that want to experiment with facial recognition.

The guidance warns that this technology risks leading to biased results because the algorithms used are not 100% reliable and the rate of false-positives may vary depending on gender and skin color. It sets out three general requirements for deploying facial recognition on an experimental basis.

First, facial recognition can only be used if there is an established need to implement an authentication mechanism that ensures a high level of reliability, and there are no other less intrusive means that would be appropriate. In this regard, the guidance lists examples in which the CNIL has found the use of facial recognition to be lawful. These include the use of facial recognition to access public services online (e.g., tax account, health insurance account, vehicle registration, driving license, passport or ID card) and automated identity verification systems used at borders and travel hubs, such as airports. In contrast, the CNIL decided against the use of facial recognition in schools for security and access purposes.

Second, the experimental use of facial recognition must respect the rights of individuals, which translates into a series of requirements. For example, an organization must obtain consent from individuals for each device used to carry out facial recognition, in particular when used on an experimental basis. Individuals must also be given control over their data and receive clear, comprehensive and sufficiently accessible information. The guidance indicates that the use of facial recognition on an experimental basis should not have “the ethical purpose or effect of accustoming people to intrusive surveillance techniques, with the more or less explicit aim of preparing the ground for further deployment”. This will only be permitted at a later stage for devices that are recognized as “perfectly legitimate and legal”.

Third, the use of facial recognition on an experimental basis must have a precise timeline and be based on a rigorous methodology setting out the objectives pursued and the criteria for success.

Tags: Biometric Data, CNIL, experimental basis, facial recognition, France, GDPR
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Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

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Photo of Anna Sophia Oberschelp de Meneses Anna Sophia Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act…

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act, the European Health Data Space, and EU consumer protection law, including product safety, product liability, and consumer rights legislation. She focuses on the operational side of compliance — helping clients design policies and processes, draft documentation, and build the internal frameworks needed to meet regulatory requirements in practice.

She also advises on contentious matters, drawing on experience managing investigations before national regulators and proceedings before national courts and the Court of Justice of the European Union. She works closely with Covington’s disputes teams on matters at the intersection of regulatory compliance and litigation.

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