Posted by Mei-Ling Huang, Partner
Deepfakes and the law – What can you do if your face appears in a deepfake video?
“Deepfakes” are essentially computer generated ‘faceswaps’ created using Artificial Intelligence. The term originated around the end of 2017 when an online community began sharing deepfakes they had created amongst themselves. They started with fairly harmless content such as swapping Nicolas Cage’s face on to different actors in a variety of movies, but things took a turn for the worse when people started swapping celebrities’ faces on to the bodies of those involved in pornographic videos.
These sorts of images and videos have been created for years but it used to be a difficult process that was only in the hands of a very specialist and technical community. Nowadays, as technology becomes more sophisticated and software and apps more readily available, it is much easier for anyone to create a deepfake video of an individual saying or doing almost anything.
Female celebrities including Emma Watson, Daisy Ridley and Taylor Swift were the first famous examples of deepfakes. But in a world where the technology is becoming more accessible, images and videos are increasingly being created in order to target everyday individuals, especially those in powerful positions such as CEOs and politicians, either for financial gain or in an attempt to discredit their reputation.
What can you do if your face appears in a deepfake video?
Technology is a wonderful thing and, when used appropriately, enables us to do things that could previously only have been imagined. For example, producers can complete films after actors have died, such as Fast and Furious 7 following the tragic death of Paul Walker.
However, on the flip side, the manipulation of images using Artificial Intelligence can be dangerous and for victims, the damage can be far reaching.
If you are in a position where your brand is vital to who you are and what you do, a deepfake video has the potential to destroy that. For example, if you are the CEO of an environmental charity and someone creates a deepfake video of you saying in an interview that you intend to melt all the icecaps in order to get to the gas in the Arctic, the immediate fall out of that ‘interview’ could be catastrophic to your reputation as well as to the charity. Even if the video is ‘faked’, people will assume it is true unless and until it is proved otherwise.
Your reputation and your privacy are priceless assets. If you find yourself appearing in a deepfake video then we suggest you seek legal and PR / crisis management advice as a matter of urgency. You will need to consider a number of things – immediately limiting the spread of the content and therefore the potential damage (through injunctive action where possible); instructing experts such as digital reputation management firms and PR advisors to manage the external messaging; and, of course, taking action against the perpetrator.
What is the law in the UK regarding deepfakes? Is it illegal to make them of someone?
In the UK, the law relating to deepfake videos falls in to a bit of a grey area.
In relation to ‘deepfake pornography’, it is clear that there needs to be a cultural shift in the acceptability of online sexual harassment as well as legislative change to bring the laws up to speed with modern technology. The government has introduced some new legislation in this area – such as the ‘upskirting’ bill – but that was in response to the particular issue of cyberflashing and does not address the range of image-based abuse facilitated by new and emerging technologies. There are now calls to make deepfake a crime in itself and the Women and Equalities Committee has recently called on the UK Government to introduce new legislation on image-based sexual abuse in order to criminalise all non-consensual creation and distribution of intimate sexual images.
In the meantime, alternative existing laws in the UK might be applicable. For example, if you produce deepfake material in the United Kingdom, you could be convicted of harassment. Last year, Davide Buccheri, a City worker originally from Italy, created a gallery of fake pornographic images of a colleague before sharing them with her bosses. He was jailed for 16 weeks and ordered to pay the victim £5,000 compensation. He was also dismissed from the investment management firm for gross misconduct.
Copyright infringement might also be an option or if you can show that the material has caused or is likely to cause serious harm to your reputation, you may be able to use defamation legislation to pursue the deepfaker, the remedies for which could include court orders to have the material destroyed, injunctions and / or damages.
Will the law have to change to protect people? If so how?
Fake news is in our minds now more than ever thanks to the world of social media. It is clear that the law needs to develop further to protect people but with technology changing at such a fast pace, it could be an impossible task for legislators to stay ahead of it.
In the meantime, MPs have called on tech giants and social media platforms to work to protect their users from abuse and suggest financial incentivisation such as a tax levy might be the answer. Some websites and social media platforms such as Twitter have already taken action by revising their user policies to ban the uploading of non-consensual videos created using deepfake technology, but it remains clear that there is more to be done.
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