JURIST Guest Columnists, Yash Raj, a student at the National University of Study and Research in Law in Ranchi, India, discusses the legal implications of deepfakes...
Technology has always been a necessary evil but the advent of Deepfake has tilted the balance more towards the evil side. Deepfakes are an Artificial Intelligence (AI) based technology used to morph a person’s face onto another and manipulate voice recordings. Deepfakes have been increasingly used to create doctored videos and sound recordings which on the face of it appear just like the original. The term first appeared back in November 2017 when a Reddit user u/deepfakes made a Reddit forum of the same name for posting face-swapped female celebrity pornographic videos created using novel deep learning techniques called Generative Adversarial Networks (GANs).
Deepfakes have gained massive popularity recently with several reported incidents of deepfake videos popping on the internet. Almost 96% are pornographic content according to a 2019 report by Deeptrace. However, there has also been growth in the non-pornographic content with several global political and corporate figures being targeted. Some of the most convincing and popular deepfakes include that of Facebook’s CEO Mark Zuckerberg, Gabon’s President Ali Bongo, UK’s Prime Minister Boris Johnson, Speaker of US House of Representatives Nancy Pelosi, US Presidents Donald Trump and Barack Obama among many others. Although, Computer Generated Imagery (CGI) technology has been already in use mostly for movies and advertisements but the same required expensive software and sophisticated technical skills, and were prepared in specialized laboratories. Conversely, deepfakes can be created by anyone having a computer and some basic skills at much lower costs and therefore, poses massive legal, social, and moral threats that must be countered.
The Intensifying Threat: A Blurred Reality
The immensely growing popularity of deepfakes has largely been limited to the creation of pornographic content but the apparent shift towards other spheres such as targeting of political and corporate figures is astounding. Pornographic content created through deepfakes could primarily be said to be against the very principles of consent, privacy, and other basic human rights as they are mostly created as non-consensual porn either revenge porn or celebrity porn. However, there lies more profound implications when the same happens in the political domain. Deepfake videos of political leaders can have alarming consequences such as the spread of hatred, violence, riots, and even wars. It can be used to spread false propaganda so as to manipulate elections which could further lead to unforeseeable consequences and therefore, a threat looms on the upcoming Presidential Elections in the US. There have even been cases where some political leaders have tried to avoid consequences by claiming certain compromising videos to be deepfakes and the truth remains in oblivion due to the lack of proper detection technologies.
In an era where the dependence on technology has been rising immensely, the reliance on videos for the spread of information is no exception. Deepfake videos could be used to cause political imbalances, spread of fake information, military coups and the list of possible consequences goes on. It can even be used by an autocratic government in countries like North Korea to spread false propaganda about the outside world and oppress its citizens. The concerns are even graver for developing countries like India where due to the low digital literacy, people are more susceptible to such fake information. Deepfakes can cause mayhem in countries with unstable and fragile governments, threatening political stability. Last year, a video of an African nation Gabon’s President Ali Bongo led to an ultimately unsuccessful military coup as doubts were raised about the well-being of the President because the video was believed to be deepfake.
Misinformation and COVID-19
The spread of misinformation during the COVID-19 pandemic has been rampant and the use of deepfake could be catastrophic in such scenarios. There have been several reports warning about impacts of the spread of fake news during the current pandemic. In April 2020, a deepfake video of Belgium’s Prime Minister connecting the pandemic with ecological crises surfaced which emphasized the need for battling misinformation through deepfakes in current times. The World Health Organization (WHO) along with the UK Government have started a global campaign “Stop the Spread” and even social media websites like Facebook took certain countermeasures to curb the spread, however, the reality remains harsh as studies show that such measures have largely failed to counter the spread effectively. Thus, there lies an imperative need to rigorously regulate the spread of misinformation along with addressing the deeper concerns surrounding deepfakes.
Legal Implications and Counter Measures: The Way Forward
Regulations have always been slow to catch-up with the ever-advancing technologies. Similar has been the case of deepfake where the laws are almost non-existent to curb its widespread use. There has been development of deepfake detection technologies and datasets by leading global tech-companies like Microsoft, Facebook, Amazon, and Google to curtail the menace, nevertheless, the breathtaking rate of development of deepfakes have made it difficult to detect them and therefore, its detection even requires digital forensics to be involved. The increasing dependence on electronic evidence like audio and video in Courts of Law based on the silent witness theory needs to be reevaluated so that utmost scrutiny is done to ensure the genuineness of the adduced electronic evidences.
Amidst the rising the uncertainties due to the lack of regulation, existing legal framework can be extended so as to counter deepfakes such as copyright infringement claim over unauthorized use of photos and videos, defamation charges by the person so harmed, violation of an individual’s privacy rights, impersonation of an individual, human rights violation and imposition of penal provisions for the harm inflicted upon the victim such harassment, fraud, etc. Nonetheless, the plausible way forward can be the implementation of extensive laws for putting a blanket ban on the creation and spread of deepfakes, however, the same needs to be balanced with the freedom of speech and expression. In 2019, the state of California made it illegal to create or distribute deepfakes of politicians within 60 days of an election, although the enforcement of the law has largely been questionable.
The boundless capabilities of the deepfake technology and the borderless nature of the internet can be a cause of concern for law enforcement authorities around the world as creators of deepfakes are mostly anonymous. There have even been cases of synthetically created photos and videos of non-existent people used to commit crimes such as cyber frauds. In order to address this issue, websites should be mandated to have better content moderation policies for ascertaining and stopping the spread of deepfake content along with the extensive use of deepfake detection technologies. Governments should carry out awareness drives especially in countries with lower levels of digital literacy apart from establishing an efficient complaint mechanism for the victims. An international regulatory framework can also be adopted to curb the overall spread of misinformation on the internet. Nevertheless, an infallible regulatory policy is yet to be ascertained as the deepfake technology is continuously evolving at an alarming pace.
Deepfake has been one of the most notoriously employed technologies developed till now. The rise in popularity along with its pace of development has become a cause for concern for the whole world. Currently, they are used mostly to create pornographic content, however, there have been several reports of non-pornographic deepfake content circulation especially targeting political and corporate figures. There is an impending need for its regulation so that the innumerous and calamitous consequences can be evaded. However, the current technological protection and detection measures have been mostly been inadequate to counter the same. There should be a proactive approach from the legislators providing for stricter regulations along with mandates for websites to curtail the menace. There have been many suggestions from different cybersecurity experts but the world is yet to ascertain an infallible policy to tackle them. Deepfakes have indeed blurred the lines of truth and pushed us towards a post-truth world.
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Yash Raj is a third-year student at the National University of Study and Research in Law, Ranchi, India.
Suggested citation: Yash Raj, Obscuring the Lines of Truth: The Alarming Implications of Deepfakes, JURIST – Student Commentary, June 17, 2020, https://www.jurist.org/commentary/2020/06/yash-raj-deepfakes/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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