Could Hungary use facial recognition against Pride parade participants?

Hungary has recently passed legislation banning Pride events and allowing the use of facial recognition technology (FRT) to identify and potentially fine participants. These measures, justified under the guise of "child protection," raise significant legal and ethical questions within the framework of European regulations, especially the AI Act and the European Convention on Human Rights (ECHR)..

Use of Facial Recognition and the AI Act

Article 5.1.h of the European Union AI Act prohibits the use of "real-time" remote biometric identification systems in public places for law enforcement purposes. However, this article contains a number of exceptions that depending on its interpretation may undermine the effectiveness of the ban. These exceptions may lead to the conclusion that Hungary, despite its intention to use FRT against Pride participants, may not be in violation of the AI Act.

Relevance of the European Convention on Human Rights

In addition to the AI Act, the ECHR also provides a legal framework to protect fundamental rights. In the case Glukhin v. Russia the European Court of Human Rights (ECHR) ruled in 2023 that there was no pressing social need for the use of facial recognition technology to identify and arrest participants in a peaceful protest. The Court concluded that such use is not necessary in a democratic society. This case law is relevant to the situation in Hungary, where the use of FRT against Pride participants raises similar questions about the necessity and proportionality of such measures.

The European Commission also recognizes this protection of fundamental rights in its (Draft) guidelines on prohibited AI practices.

Conclusion

Although the AI Act is an important tool to regulate the use of FRT, the exceptions present can make enforcement of the ban difficult. Therefore, the protection of fundamental rights as guaranteed by the ECHR can also be used in any legal argumentation against the use of FRT in situations such as Hungary's planned actions. Highlighting these fundamental rights provides a basis for challenging such practices and preventing the misuse of technology to restrict the rights of specific groups, such as the LGBTQI+ community.