Bunnings and Kmart hit with facial recognition investigation

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Joseph Brookes

Australia’s privacy regulator has opened investigations into Bunnings and Kmart centred on the retailers’ use of facial recognition on customers. Preliminary inquiries have also commenced into the Good Guys for its previous use of the controversial technology.

The Office of the Australian Information Commissioner (OAIC) issued a brief statement on Tuesday confirming it had launched formal investigations of the retail giants’ personal information handling practices.

The investigations will focus on the companies’ use of facial recognition technology after an investigation by consumer group Choice revealed the practice. Choice filed a complaint to the OAIC, triggering the investigations.

The Good Guys appear to have been spared a formal investigation after saying it would “pause” its use of the technology. But it remains the subject of “preliminary inquiries” by the OAIC.

The Choice investigation found the three retailers have been capturing biometric data of customers through facial recognition technologies without properly informing customers or receiving clear consent.

The practice is at odds with consumer expectations and without expressed consent a likely breach of privacy laws, according to legal experts.

But the three companies defended their use of facial recognition, saying it is needed to reduce theft and keep employees safe in stores, and customers were made aware of the practice through physical signage at store and in online privacy policies.

Choice disagreed, alleging it was a breach of privacy laws, and filed a complaint to the OAIC which was obliged to investigate.

As backlash grew to the latest use of facial recognition by retailers, one backed away from the controversial technology.

The Good Guys said it would “pause” its trial of facial recognition “pending any clarification from the OAIC regarding the use of this technology”.

The OAIC said a preliminary inquiry of the Good Guys is ongoing but formal investigations have been launched into Bunnings and Kmart, which have continued to use the technology.

Australia’s Privacy Commissioner, currently Angelene Falk, is authorised to investigate an act or practice that may be an interference with the privacy of an individual or Australian privacy law.

In a separate investigation of 7-Eleven that concluded last year, the regulator determined the convenience chain had breached customers’ privacy by using facial recognition technology without clear, active consent.

A leading privacy expert said the 7-Eleven case has “strong parallels” with Bunnings, Kmart, and the Good Guys use of facial recognition technology.

On Monday, New South Wales Privacy Commissioner Samantha Gavel said if the companies had conducted a proper risk assessment of using facial recognition technology, it likely would never have made it to stores.

“If Bunnings and Kmart had actually done a risk assessment on their technology and whether it was suitable to record everybody entering the store and check their facial characteristics, then I don’t think they would have come to the conclusion that it was such a good idea,” Ms Gavel said.

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