New Zealand lawyer ‘not surprised’ if Australian laws change for retail biometrics use

Digital Identity New Zealand (DINZ) hosted a discussion led by NEC New Zealand on “Facial Recognition and CCTV Integration in Retail Security” this week, with a panel including data privacy, government and legal experts.

It comes amidst industry anticipation of the New Zealand Privacy Commissioner’s conclusions on supermarket chain Foodstuff’s results from its trial of facial recognition. The company considers the preliminary findings of the trial encouraging.

In Australia, retail chain Bunnings made headlines after it was found to have breached the country’s privacy laws by using facial recognition. However, the company received some unexpected support when 78 percent of nearly 11,000 respondents supported the company’s use of the technology.

In the discussion, Campbell Featherston, a partner at law firm Dentons New Zealand, mentioned that it is easier to deploy facial recognition technology (FRT) in New Zealand rather than Australia due to differences in law.

Commenting on the Bunnings case, Featherston remarked that the Australian retailer must obtain consent when collecting biometric data such as from FRT.  “The absence of consent under Australian law means that it is very difficult for Bunnings to roll out facial recognition technology,” he said.

“The need for consent doesn’t apply [in New Zealand],” Campbell said, who commented that it wouldn’t surprise him if the privacy law had to change in Australia, such as removing the need for consent in order to accommodate the use of FRT.

Ross Hughson, managing director of Personal Information Management, was asked what was driving the use of FRT amongst retailers. “The key driver is health and safety of staff,” he replied, pointing to managers’ responsibility over their employees’ health and safety.

Featherston elaborated on how best to comply with New Zealand’s Privacy Act 2020, mentioning privacy impact assessments (PIA), having a good understanding of privacy safeguards, having human oversight of the technology, and properly trained staff. He suggested that users of the technology should be sure of the purpose of what they’re trying to achieve through its use, and to avoid “purpose creep.” Transparency is also important and retailers should have notices at the entrance of stores, and “customer-facing documentation,” he said.

The senior lawyer made the point that issues can arise even in the absence of technology. He brought up the example of security guards trying to identify people based on grainy CCTV footage, which could lead to misidentification.

Dr. Vica Papp, principal data scientist at MBIE, was invited to talk about racial biases. This is a chief concern of New Zealand Privacy Commissioner Michael Webster as the accuracy of FRT for minority populations with darker skin is an issue.

Papp recognized that biases exist and the importance of training for staff on unconscious biases. She said that with FRT it can be a physics-based issue rather than that of “race” as people with darker skin tend to reflect less light, picking up on “light receptivity” and how this may impact FRT. But she advised that retailers should find a product that doesn’t show discrimination, that it can handle the specific local population, and to train and test the system on “well-curated data sets.”