Deepfakes: call for legislation to protect naive citizens
The Conversation
Leanne Manas is a familiar face on South African television. Towards the end of last year, the Morning Live presenter’s face showed up somewhere else: in bogus news stories and fake advertisements in which “she” appeared to promote various products or get-rich-quick schemes.
It quickly emerged that Manas had fallen victim to “deep faking”.
Deep fakes involve the use of artificial intelligence tools to manipulate images, video and audio. And it doesn’t require cutting-edge technical know-how. Software like FaceSwap and ZaoApp, which can be downloaded for free, mean anybody can create deep fakes.
Deep fakes were initially used in the entertainment industry. For example, an actress in France who was unable to film her parts in person for a soap opera due to Covid restrictions still played the role, thanks to deep fakes. In the health industry deep-learning algorithms, which are responsible for deep fakes, are used to detect tumours through pattern-matching in images.
But these positive applications are few and far between. There are rising global concerns about the effect deep fakes might have on democratic elections. Recent reports suggest deep fakes are on the rise in SA and South Africans seemingly struggle to spot them.
It is worrying, then, that SA’s government hasn’t taken legislative steps to combat deep fakes – especially with national elections scheduled for this year.
As a legal scholar specialising in sport law, with a particular focus on image rights, I’m especially interested in the recognition of an individual’s image right and the legal position when their likeness is misappropriated. That includes the use of deep fakes.
In my LLD thesis, I argued a person’s image needs clear legal protection, taking into account the realities of digital media and the fact that many individuals, such as influencers and celebrities generate an income from commodifying their image online.
Promulgating legislation will create legal certainty in SA as it pertains to an individual’s image.
Various states in the US have already taken action to deal with deep fakes, mostly in the context of elections.
For example, Texas become one of the first states to criminalise the use of deep fakes, especially if the content relates to political elections. It recently passed a second Bill which targets sexually explicit deep fakes.
So it’s a criminal offence to create a deep fake video with the intention of injuring a political candidate or influencing an election result, or to distribute sexually explicit deep fakes without the consent of the individual, with the intention to embarrass them.
Maryland and Massachusetts have proposed legislation that prohibits the use of deep fakes. Maryland plans to target deep fakes that may influence politics; Massachusetts wants to criminalise the use of deep fakes for already “criminal or tortious [wrongful] conduct”.
In 2020, California became the first US state to criminalise the use of deep fakes in political campaign promotion and advertising. The AB 730 Bill makes it a crime to publish audio, imagery or a video that gives a false and damaging impression of a politician’s words or actions.
Though the Bill doesn’t explicitly mention deep fakes, it is clear that Artificial Intelligence-manufactured fakes are its primary concern.
In 2023, the governor of New York signed the Senate Bill 1042A. This aims to prohibit the dissemination of deep fakes in general, not just in relation to elections.
At least four federal deep fakes Bills have been considered.
There is currently no recognition of image rights in SA’s case law or legislation. Image rights are distinct from copyright in law. The scope of protection provided by copyright alone would not be enough to tackle the problem of deep fakes in a court setting.
I argue for legal intervention which recognises individual image rights.
This will not only include the misappropriation of an individual image for commercial use, it will combat deep fakes, whether those relate to elections and politicians or any manipulation of a person’s image with malicious intent.
Image rights legislation is key. It can:
▶ Clearly define an individual’s image;
▶ Specify when an infringement of the image has occurred;
▶ Provide the image right holder with legal remedies for unauthorised use.
The malicious and deceptive nature of deep fakes may cause the image right holder to suffer significant harm.
It is time that South Africa’s legislature addressed these situations by providing the necessary protection to individuals.
▶ Van Gensen is a junior lecturer in mercantile law at Stellenbosch University