What does “face” mean? How should we treat our face?
Editor’s note: This article is from WeChat public account “All Media Party (ID: quanmeipai), author Zhu Yuyang.
After the face-changing software ZAO’s brushing storm, another news triggered a hot discussion among the public about face recognition technology. And if the ZAO storm is just a story that affects a handful of people, what is reported in recent news – the Beijing subway will use face recognition technology to classify passengers to improve passenger efficiency – the involved It will be the majority of people in the city. This directly touched the public’s fear of the security of personal information. Guangming Daily commentator pointed out in a straightforward article, “Don’t make face recognition technology a modern ‘hedgehog’.”
So, what does “face” mean? How should we treat our face? In this issue, the whole media (ID: quanmeipai) was authorized to reprint the article of the Tencent Institute (ID: cyberlawrc), and to analyze the three layers of the “face” from the legal level.
Overview, the “face” of each of us actually appears as different levels of meaning under different scenes, which can be decomposed into three kinds of meanings: “external image-identity-personality”. The different levels of public and private attributes of “social-weak society-private”, and the law also shows different protection modes from weak to strong.
One of the three connotations of “face”: external image and its social attributes
The connotation of “face” is first manifested in the “external image” of portraits, that is, the reproduction of external images including natural faces, which often needs to be expressed through photographs, images and other carriers. The protection of “face” in our country’s legislation was first reflected in the protection of the right to portrait.
As long as Article 100 of the General Principles of the Civil Law stipulates that citizens have the right to portrait, the protection of the right to personal portraits at this time is limited, that is, only if they satisfy the “without their consent + for profit” When it comes to the elements, it constitutes an act of infringement of the right to portrait. As the protection of personality rights shows a trend of continuous strengthening, in the judicial practice, “profit-making purposes” are no longer used as constituent elements, except for the purpose of making profits.It is used in an insulting manner (such as placing an avatar on indecent photos, animals, etc.) without my consent, and it also constitutes an act of infringing on the portrait rights of others.
The portrait rights protection mode of “Face” has the following characteristics;
First, do not pursue the accuracy of the “face”.
For example, the external image of a person expressed in the form of a comic is also a portrait, or even a side or other part, as long as the general public can judge his identity to form a portrait. The photo shows only a part of a person’s highly recognizable, external image, such as Shu Qi’s thick lips and Zhao Benshan’s wedge face, even if it is not the full appearance of the facial shape, it will be protected by the right of portrait.
Second, limited by the reasonable use of portraits.
For example, to maintain the interests of the society, to protect the interests of natural persons, to report on current affairs, to use portraits of others based on scientific research and teaching, etc. For example, various provinces and municipalities have issued relevant safety technology prevention and management regulations to allow cameras to be installed in key security areas such as city entrances and exits, major roads, pedestrian crossing facilities, etc.; financial institutions need to conduct business for customers based on the need to fulfill legal obligations such as anti-money laundering. Double-recording; media coverage of public figures such as stars and government officials.
In the dispute of portrait rights triggered by Lu Xun’s Biography in 2013, the court held that the defendant used the photo of Lu Xun’s collection of the museum to publish Lu Xun’s Biography, introducing Lu Xun’s deeds and interpreting Lu Xun’s spirit to the readers of the society. The reasonable use of Lu Xun’s portrait does not constitute infringement.
Third, it can be used commercially.
Different from the right to life, health, reputation, etc., we can permit others to use this “face” for commercial use. Star advertising endorsements fall into this category.
In summary, when “face” first manifests itself as an external feature of “external image”, it has strong social attributes. In Swiss law, there is the concept of social personality right, portrait right and name right, Name rights, voice rights, etc. are all classified as personality rights (the so-called “targeted personality rights”).
“Face” is a must for people in social interactions, and is closely related to their master’s social interactions. It is used to prove to others in their social relations that “I am Zhang San, not Li Si” to judge this. The relationship between the owner of the face and the rest of the society. The illegal use of the external image, such as the deep-forgery technique to change the face into a person we are familiar with, will affect the individual’s judgment of the social relationship between himself and the counterfeiter. Therefore, the second draft of the Civil Code’s draft of personality right responds to “changing face” and stipulates that no organization or individual may infringe upon the right of portraits of others by means of forgery by means of information technology.
So this is a good explanation of some of the phenomena around us:
Why do we care about the beauty and ugliness of our friends’ circle photos? It is usually only when the photo itself is demonized that we will assert our portrait rights, because “defiled” will affect our position and recognition in social relations.
Why is the endorsement fee of a person who is very similar to a star different from the real star? Because although the shape is similar, only the face of a real star (ie, endorsement) can be recognized by fans to represent the social relationship between fans and idols.
When taking pictures in public, would you ask other people who entered the camera to agree to shoot? Similarly, would anyone who accidentally became a background think that the photographer violated his or her portrait rights? Because in the subconscious of the “face” owner, this situation usually does not affect my own specific social relationship (unless it is too ugly).
Therefore, in the portrait protection mode of “face-external image-social attribute”, the legal protection of “face” is the weakest, usually only without the consent of the person (the reasonable use does not require I agree) that the use of “face” in an unlawful manner (such as insulting, forgery, etc.) constitutes an act of infringing on the portrait rights of others.
The three connotations of “face”: identity and its weak social attributes
The second meaning of “face” is embodied as “identity”. In the legal sense, it is the facial recognition feature of each person, as a kind of personal biometric information, belonging to personal sensitive information. Like a person’s fingerprint, iris, etc., it is a combination of features that distinguish people’s faces, each person’s eyes, nose and mouth.The geometric relationships such as distance, area and angle between features are different and unique. Therefore, it is possible to determine a specific specific individual by the facial recognition feature of the individual.
Face recognition information is different from the photo itself. The European Union’s General Data Protection Regulations (GDPR) distinguish between facial recognition data and photographs. Article 51 stated that “processing a photo is not fully considered to be processing personal sensitive data. The photo is considered biometric only when the photo is processed by a specific technical method to enable it to identify or authenticate a particular natural person. (See Hong Yanqing: “A preliminary study on the legal regulation of face recognition technology”, public number “Netan Pathfinder” August 16th.)
“Recognition” in face recognition technology actually processes a carrier containing facial features such as photos, images, etc. by specific technical means and methods, and can identify or authenticate by extracting facial features of the face. Specific natural person. Therefore, the process of face recognition is to authenticate and identify a particular natural person. In practical application scenarios, the functions of face recognition technology can be divided into “validation” and “recognition”. The meaning of “face” is also correspondingly reflected as “identity” and “personality”. The two are different from each other. And we tend to confuse the two.
The first function of face recognition technology refers to “verification”, which can also be called “authentication”. In layman’s terms, it is to identify “who are you”, that is, whether you are Zhang San or Li Si. In this kind of scene, the meaning of this face is the identity of the person, that is, the face represents the specific person who is the owner of this face. In the image metaphor, everyone is “carrying and displaying with individuals at any time. Photo ID card.”
For example, in the application scenarios such as train stations and airports, the face recognition technology is used for identity comparison. This is the face recognition technology for the passengers and passengers to verify the identity of the person and the passenger. In this scenario, the face recognition technology is used for identity verification, and there is no difference compared with the past work of manually completing the “personal card integration”. On the contrary, it has the advantages of non-contact, one-time multi-person identification, and saving labor costs, which can improve the efficiency, convenience and comfort of the human-integration comparison.
In addition, this “verification” feature is also reflected in many similar application scenarios. For example, it can be used as a powerful means for the government to protect citizens’ security and combat crime. It can help arrest prisoners, fight crimes, and track and monitor terrorist activities. It can help enhance public safety and monitor alarms. It can also be used to track missing children. In the remote payment, it is determined whether it is a transaction, etc. All in all, in this application scenario, the meaning of the face is to prove the “identity”, as long as the certification “this person is Zhang San” can be achieved.
Overall, the verification function of face recognition technology is used as an auxiliary means of social management, including security, crime prevention, social efficiency and other social public interests and social well-being. Under this scenario, the face has for sure