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Judicial Construction of Bounded Legitimacy in Facial Recognition Technology: A Comparative Study of China, the United Kingdom, and the European Legal Order | ||
| پژوهشنامه نظمهای منطقهای آسیا | ||
| مقالات آماده انتشار، پذیرفته شده، انتشار آنلاین از تاریخ 21 شهریور 1405 | ||
| نوع مقاله: مقالات انگلیسی | ||
| شناسه دیجیتال (DOI): 10.22099/jaros.2026.56792.1075 | ||
| نویسندگان | ||
| هادی صالحی* 1؛ علی رضا رفیعی سعدی2 | ||
| 1عضو هیأت علمی بخش حقوق عمومی و بین الملل دانشگاه شیراز | ||
| 2دانش آموخته کارشناسی ارشد حقوق بین الملل دانشگاه شیراز | ||
| چکیده | ||
| Abstract Introduction and Objectives: In pursuit of expanding their security capabilities, governments have increasingly subjected citizens to indiscriminate mass surveillance and have relied on the large-scale collection and processing of diverse forms of data. Among these practices, the use of visual data has generated particularly serious concerns. Facial recognition technology (FRT), whose adoption accelerated in many jurisdictions following major terrorist incidents and public health crises, has become one of the most contentious manifestations of this trend. The significant security and administrative benefits associated with FRT have encouraged its rapid deployment, prompting states and regional organisations to gradually establish regulatory principles and legal frameworks governing its use. Judicial institutions have played a pivotal role in interpreting and shaping these regulatory standards in China, the United Kingdom, and the European human rights system. This study therefore examines how these jurisdictions have responded to the legal and societal concerns surrounding facial recognition technology, and explores the similarities and differences in the judicial approaches that are likely to influence future policymaking. Method: This research adopts a comparative-analytical approach based on the examination of legal documents, judicial decisions, and the scholarly literature on mass surveillance. It analyses legislation on personal data protection, regulatory instruments concerning artificial intelligence, and leading judicial decisions from China, the United Kingdom, and the European Court of Human Rights. The analytical framework is grounded in the premise that surveillance technologies are not politically neutral instruments but rather socio-political constructs whose deployment reflects the balance of power between the state, devices, and citizens. Findings: The expansion of facial recognition technology cannot be explained solely by coercive legal or governmental decisions. In China, the coexistence of longstanding surveillance practices and the exceptional circumstances created by the COVID-19 pandemic accelerated the widespread deployment of facial recognition systems while simultaneously increasing their public acceptance. However, governmental efforts to legitimise the technology could not rely exclusively on this degree of social acceptance. As its use became more widespread, both the media and citizens increasingly questioned its implications for fundamental rights. Consequently, Chinese courts largely refrained from ruling on the intrinsic legality of facial recognition technology itself, instead developing procedural principles and regulatory standards, particularly in the context of contractual and private legal relationships. A broadly similar pattern emerged in the United Kingdom and across the Council of Europe, where extraordinary events such as the September 11 terrorist attacks similarly accelerated the adoption of surveillance technologies. The UK Supreme Court articulated a set of legal principles governing the deployment of live facial recognition systems, while the European Court of Human Rights focused on procedural safeguards and fundamental legal principles designed to protect individual rights and freedoms. A common feature of all three regulatory models is the gradual process through which governments or regional institutions have sought to legitimise the use of facial recognition technology, while generally avoiding a definitive judgment on its inherent legitimacy. Instead, regulation has primarily focused on procedural safeguards and legal standards governing its deployment. The principal differences lie in the normative foundations of these approaches. In China, judicial scrutiny has largely centred on contractual relationships rather than the scope of governmental authority. within the European human rights framework the European Court of Human Rights has placed greater emphasis on the indirect consequences of facial recognition technologies for the protection of fundamental rights. Although all three models reveal a gradual and limited process of legal legitimisation, the differing constitutional and legal values that each system prioritises have resulted in distinct regulatory principles that are likely to shape future policy developments. Conclusion: The findings demonstrate that facial recognition technology represents one of the most significant legal and political challenges confronting both China and contemporary Europe. The principal risk lies not merely in technical errors or isolated infringements of privacy, but in the possibility that facial recognition systems may evolve into comprehensive mechanisms for undermining fundamental rights in the name of security. Despite important commonalities, the comparative experiences of China, the United Kingdom, and the European human rights system suggest that the future direction of regulatory policy—particularly in light of China's current approach—will depend on the capacity of legal systems to restrain the logic of security pursued at any cost. | ||
| کلیدواژهها | ||
| Facial Recognition, Mass Surveillance, Bounded Legitimacy, Supreme People'؛ s Court of China, European Court of the Human Rights | ||
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