Court of Appeal rules Automated Facial Recognition breaches data privacy rights: Gerry Facenna QC and Eric Metcalfe act for Information Commissioner in landmark case

11 Aug 2020

In a ground-breaking decision, the Court of Appeal today unanimously held that the use of Automatic Facial Recognition (AFR) by South Wales Police breached privacy and data protection rights due to the lack of a clear legal framework, reversing the Divisional Court’s judgment in September 2019 which had approved its use. That judgment was acclaimed as the first time any court anywhere in the world had considered the lawfulness of AFR.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner, who had been granted permission to make written and oral submissions before both the Divisional Court and the Court of Appeal.

The Court of Appeal accepted the submissions of the Commissioner and the Appellant that the legal framework governing AFR failed to comply with the right to private life under article 8(2). The Court observed that it was “not clear who can be placed on the watchlist nor is it clear that there are any criteria for determining where AFR can be deployed” (paragraph 91). The existing policies governing AFR, the Court held, “do not sufficiently set out the terms on which discretionary powers can be exercised by the police and for that reason do not have the necessary quality of law” (paragraph 94).

The Court also agreed with the Commissioner’s argument that the Police’s data protection impact assessment failed to meet the requirements of section 64 of the Data Protection Act 2018 because it “failed properly to assess the risks to the rights and freedoms of data subject” (para 153). In addition, the Court of Appeal held that South Wales Police had breached their public sector equality duty under the Equality Act 2010, on the basis that they had “never sought to satisfy themselves, either directly or by way of independent verification, that the software program in this case does not have an unacceptable bias on grounds of race or sex” (paragraph 199).

Today’s judgment has received widespread media coverage, including the Financial Times, the Daily Telegraph, the Guardian, the Times, and the BBC.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner.