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OAIC reiterates compliance with privacy laws and facial recognition technology

The consumer advocacy group CHOICE is referring major retailers such as Bunnings, Kmart, and The Good Guys to the Office of the Australian Information Commissioner (OAIC) over the use of facial recognition technology.

CHOICE conducted an analysis of the 25 largest retailers in Australia and discovered that the aforementioned businesses were using facial recognition technology to capture the biometric data of their consumers. This facial tracking was regarded as CHOICE as completely unnecessary and inappropriate. Moreover, 76% of consumers surveyed by CHOICE were unaware that they were being tracked when entering those stores.

CHOICE equates facial recognition monitoring to DNA or fingerprint collection every time you enter a store. Small warnings are displayed in stores such as Kmart and Bunnings regarding facial recognition technology, however, the wording and signage fail to adequately inform consumers of the impact of this data collection.

The retailers in question generally commented that facial recognition technology is used to monitor persons of interest who have previously been involved with incidents at the store. This helps create a safe and secure environment. Despite these modest security concerns, it is unclear what the retailers are doing with the biometric data. Peter Lewis, from the Australia Institute Centre for Responsible Technology, highlighted that several companies repackage and sell biometric data to advertisers and governments. Peter Lewis is calling upon the federal government to adopt the Human Rights Commission’s 2021 recommendation for a moratorium on using facial recognition technology until greater safeguards are introduced.

The OAIC commented on this issue and noted that retailers using facial recognition technology must do so in accordance with existing privacy laws and the wider community’s expectations. This means that biometric data should only be collected where it is reasonably necessary for the functions and operations of the business, and where the retailers have express consent from consumers.

There is currently no dedicated law regarding facial recognition use and CHOICE is calling upon the OAIC to create a guide to protect consumers from facial recognition technology. The OAIC prepared a submission to the Attorney-General’s Department in 2021 regarding amendments to the Privacy Act 1988 (Cth) to prohibit commercial uses of one-to-many facial recognition technology, with limited public interest exceptions. Australia may benefit from incorporating draft legislation from the European Union for biometric data protection.

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