Imagine living in a world where one can create a video of someone else speaking words that they never actually uttered in a way that can be used as comedy or easily mistaken as reality. Well, thanks to a technology known as deepfakes, we are living in that world today. So, what is deepfake technology and why are some Internet platforms implementing this technology while others are banning it? Can a deepfake be defamatory? Are deepfakes illegal?
Deepfakes are a branch of machine learning that uses deep learning technology that applies neutral net simulation to massive data sets to create a fake. Hence the name, “deepfake”.
How Do Deepfakes Work?
The power of artificial intelligence allows machines to learn what a source face looks like at different angles in order to transpose the face onto another source, whether it be a person or a robot, in a way that is similar – and sometimes more realistic- to someone wearing a mask.
One of the most well-known and controversial ‘deepfakes’ video example is the video of speaker Nancy Pelosi that was altered to appear as though she was slurring her words. The video appeared on Facebook and the company was criticized last year for refusing to take it down. In defense, the company claimed they had placed the video under its fact-checking process as well as reducing its reach on the social network, according to the New York Times.
Deepfakes and Facebook
Now after being heavily scrutinized for refusing to remove the Nancy Pelosi video, Facebook is now banning videos that are heavily manipulated by artificial intelligence, i.e. deepfakes. On Monday, January 6th, 2020 Facebook posted a blogstating that the social network would “remove misleading manipulated media if it meets the following criteria:
- It has been edited or synthesized – beyond adjustments for clarity or quality – in ways that aren’t apparent to an average person and would likely mislead someone into thinking that a subject of the video said words that they did not actually say; and
- It is the product of artificial intelligence or machine learning that merges, replaces or superimposes content onto a video, making it appear to be authentic.This policy does not extend to content that is parody or satire, or video that has been edited solely to omit or change the order of words.”
In other words, what Facebook is mostly concerned with is the role that deepfakes may have in the spread of fake news, especially since Facebook is classified as the No.1 platform for sharing false political stories, according to disinformation researchers.
Deepfakes and Snapchat
While Facebook is increasing their deepfake detection and working to ban malicious AI technology- Snapchat, a different social network, is working on new ‘deepfake’ type features. Snapchat is a picture and video sharing platform famous for its “snapchat lens” that can morph users’ faces into a younger version of themselves (“the baby filter”) or even appear as a dog on screen with a cartoon tongue that comes out of the user’s mouth when they open it. Now, Snapchat is hoping to make another feature using deepfake software that will allow users to overlay their face over a selection of pre-made scenes. This means that you don’t have to have tech savvy skills in order to know how to deepfake a video. TechCrunch reports that Snap Inc. quietly acquired an AI factory in Ukraine for a price believed to be around $166 million in order to create the new feature.
Deepfakes and Pornography
Deepfakes can be used as a form of sexual harassment as well. Hundreds of users of the telegram messaging app have been victimized by a free deepfake bot that replaces the clothed parts of women’s bodies with pornography, according to CNET. Unfortunately, deepfake phonography is not new, but this new technology has made it much easier to sexually harass and defame people online.
Are Deepfakes Ethical?
When deepfake technology was first introduced, it seemed relatively harmless because it was less realistic. The faces overlapping the videos were glitchy and were most often used for comedy and entertainment purposes. Now that the technology is advancing, the line between entertainment and reality is quickly blurring. It’s very possible that this technology has the potential to spread fake news and can be defamatory. In fact, one could argue that it has already has with the Nancy Pelosi video that made her appear to slur her words. If this technology were to be used for a more malicious purpose, what will the legal repercussions be?
What also is concerning is TikTok’s deepfake feature specifically. Users that do scan their face to use the feature may very well be surrendering their facial scans directly to the Chinese government, as TikTok is owned by a Chinese company. Americans are already suspicious of China using the app against Americans as they have already banned American troops from having TikTok on any government issued device. Snapchat’s feature is less threatening as it appears to be a much more cartoonish deepfake creator with the intention to add more entertainment value to the app. Not to say that TikTok’s feature doesn’t have the same intentions, but with the app being attached to China, it’s hard not to be cautious. The Chinese government already widely uses facial scanning technology in many of their big cities to track their citizens and their habits.
Deepfakes and the Law
What would be legal repercussions for creating deepfake videos that defame politicians, celebrities or businesses? Would it be considered defamation or would it be a different term?
Daniel Warner, a defamation attorney at RM Warner Law, weighs in:
“Depending on the particular facts and circumstances, along with how this technology is used under those facts and circumstances, the use of deepfakes may constitute defamation, false light and/or misappropriation of likeness. Also, it is possible that using deepfakes in a certain manner may rise to the level of criminal conduct. Criminal statutes are very broadly written. For example, under ARS 13-2008, ‘[a] person commits [the class 4 felony of] taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person’s or entity’s identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense . . . .’ Under this very broadly written statute, basic use of deepfakes may constitute this criminal offense. At the very least, it is important that people who use deepfakes make it abundantly clear that the use of a third party’s image is fictional. However, even with taking this precaution, the person may still be civilly, and even criminally, liable, depending on the facts and circumstances.”
Only time will tell if deepfakes become malicious enough to be considered criminal conduct, but it is likely that we will begin to see more and more defamation claims that stem from deepfakes.
If you are seeking the help of an experienced Internet defamation attorney, look no further than RM Warner Law. Our lawyers know exactly how to litigate cases for both public and private figures. Get in contact today.