Biometric Data: Legal Usage and Protection for Business Owners

Biometric data plays an increasingly heavy role in modern business, especially within security and identification systems. As technologies like fingerprint scanners and facial recognition tools become more and more common, your business must understand how to process this type of data lawfully under privacy law rules. This article explores key practical steps and considerations your business can take to ensure compliance with UK data protection laws when processing biometric data. 

Why is Biometric Data Use Increasingly Common, and What Privacy Challenges Does it Bring?

This data type can offer businesses certain benefits, such as improving their security and making identification processes faster and more efficient. Many industries now rely on biometric technologies to reduce fraud, improve customer experiences, and streamline operations. 

However, using biometric data comes with unique challenges under data protection law rules. You must handle this data correctly to avoid exposing your business to serious risks, such as enforcement actions, fines, and reputational damage. The ICO can reprimand businesses, impose financial penalties, or stop businesses from processing data entirely. Approaching compliance from the beginning to avoid these risks is critical.

Biometric data can uniquely identify individuals, subjecting it to key data protection law rules, which we explore below. 

How Might Your Business Use Biometric Data in Practice?

Do you know if you are using what is deemed as ‘biometric data’? This is a key consideration. 

Your business might use this type of data in everyday scenarios, such as for improving security or simplifying access to your offices. For example, providing employees with work phones and asking them to enable fingerprint recognition for security can count as biometric data processing.

If you act as the data controller of such data, your business determines how the data is collected, stored, and used. 

A few key questions to consider in this scenario include: 

• have you identified and documented the lawful basis for processing the data in this way?;
• is your processing fair, necessary, and proportionate?;
• have you implemented robust security measures to restrict access to authorised personnel?; and
• have you explained to employees how their data will be used and offered alternatives for those who do not consent?

You must address these questions and implement safeguards to avoid exposing your business to several risks. 

What Does Biometric Data Mean?

You should understand the legal definition of this type of data. 

The ICO’s guidance specifically defines that data is biometric if it:

• ‘relates to someone’s physical, physiological or behavioural characteristics (e.g. the way someone types, a person’s voice, fingerprints, or face);
• has been processed using specific technologies (e.g. an audio recording of someone talking is analysed with specific software to detect qualities like tone, pitch, accents and inflections); and
• can uniquely identify (recognise) the person it relates to.’ 

This includes fingerprints, facial recognition, voice patterns, and iris scans. 

When you use biometric data to identify an individual, data protection law uniquely classifies it as special category data, requiring stricter protections.

What Does the ICO Advise on Processing Biometric Data Lawfully?

The ICO has issued clear guidance to help businesses legally manage biometric data. 

The guidance highlights various issues, including that: 

• biometric data is personal information, and businesses must comply with data protection laws when processing it; 
• explicit consent is often the most appropriate lawful basis for processing special category biometric data (although it is essential to note this may not always be the case);
• if consent is not suitable, businesses must justify another lawful condition; 
• processing special category biometric data without a valid condition is not permitted; and
• meeting a lawful condition does not remove the need to follow data protection principles.

The ICO advises businesses to take proactive steps, such as conducting a Data Protection Impact Assessment, to identify risks and implement safeguards. For more detailed information, consult the ICO’s biometric data guidance.

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What are Key Considerations for Compliant Legal Use of Biometric Data?

Processing biometric data can be complex. Your business must consider several action points to ensure compliance with data protection law rules. 

The following list is not definitive but sets out some key issues you may need to consider and action depending on how you use biometric data and your role (e.g. whether you act as a controller):

• mapping out and understanding how your business collects, stores, and processes biometric data. You should carefully consider whether the information processed qualifies as biometric data or special category biometric data;
• identifying the lawful basis for processing, particularly where the data constitutes special category data where additional rules apply (e.g. a special category processing condition);
• conducting a Data Protection Impact Assessment to evaluate risks;
• implementing strong security measures to protect this data from breaches;
• updating your privacy notices to explain how biometric data is used and why; 
• handling data access requests transparently and in line with legal requirements; and 
• defining data retention periods and securely deleting data when it is no longer needed.

You should consult the ICO’s guidance to determine which rules apply to your business when using this data. Working with a data protection solicitor is also essential if you need help using biometric data lawfully in your business. Legal advice can provide tailored support and help your business meet its compliance obligations. 

Key Takeaways

Biometric data can significantly improve business processes, but this use comes with legal risks under data protection laws. Several key data protection law rules apply when you process this type of data. As such, your business must ensure that it understands these rules and complies with them. If you are in doubt, you should seek legal advice from a data protection solicitor, given the high risks associated with using biometric data.

If you need legal advice on using biometric data, our experienced data, privacy, and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

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