Like me, you may have been following the Privacy Commission’s progress in developing a Code for Biometrics privacy over the last 12 months. What alarmed me from the start was the proposal to ban the use of biometrics for marketing. No ban for manufacturing, no ban for agriculture, nor for Education or any other activity….just a ban on marketing!

Here’s a link to a blog I wrote on the subject last November.

This rang alarm bells, so, I asked questions and wrote a few blogs on the subject and made my feelings known to the Privacy Commission and a few privacy advocates. Some of them like Consumer NZ took up the cudgels in support of the Commission’s proposed ban. I’ve included a link to an article from them here.

Finally a few days ago a draft of the proposed Code was published, together with copious pages of notes. So, I went through the code in detail, and I couldn’t believe what I was reading….. To my delight there is no mention of banning the use of biometrics for marketing!!

Sure enough, the accompanying notes from OPC confirmed they had decided against including the ban! Here is an extract from those notes:

What’s changed since our last consultation?

You can read our previous discussion document here.

We’ve changed three things, which we’ll detail below.
1.    Consent is included as a privacy safeguard not a general requirement. 
2.    We’ve focussed on three main modifications. 
3.    We’re not restricting biometrics for marketing.

We’re not restricting biometrics for marketing

We’ve re-considered our initial proposal to restrict the use of biometrics for marketing. Instead, we think it’s better to regulate intrusive types of biometric classification like emotion recognition or categorising people in certain ways (see rule 4 in the draft code which outlines fair processing limits).

We’ve also focused on making sure the benefits of biometrics are weighed up against the privacy risks (rule 1 – is it proportionate).

Marketers should take note that some of the other rules in the draft code may impact on certain types of biometric processing that they want to use.

I’d like to think our view might have influenced this decision in some way.

However, I don’t want to get complacent because every lawyer, academic and privacy advocate is now going to have a chance to amend the proposed code, so we need to be prepared to argue our case if there is a move to reinstate the ban on using biometrics in marketing.

Feel free to get in touch keith@marketing.org.nz  if you have questions or suggestions. Especially if you’re aware of any current examples of the use of biometrics in marketing.

Source: Keith Norris, 2 May 2024