Deepfake technology is rapidly emerging as AI's latest “Pandora's box.” No longer limited to producing parody content of politicians (who will ever forget the Pope wearing Moncler?), we are now seeing generative AI being actively weaponized, from misleading political deepfakes, clickbait celebrity ads, to children in school age who falsify explicit photographs of classmates.
As the capabilities of AI tools outpace regulation, many are increasingly concerned about the very real threat it poses. New laws are emerging, but many of them are too limited or too vague to comprehensively protect people. And on the other hand, these new rules have implications that could easily surprise professionals trying to use generative AI legitimately.
So what legal protection currently exists in the UK around deepfake technologies and what behaviors are prohibited?
Graeme Murray is a senior associate at Marks & Clerks and Michael Shaw is a partner at Marks & Clerk.
Varieties of face
First, it is important to define what makes a deepfake a deepfake. After all, similarities exist in nature (there's an old saying that seven people in the world look like you), but to what extent are similarities protected by regulation and where can you make a mistake as a company? A useful example is the 2019 ruling against vaping company Diamond Mist. The company's ads included one with the tagline “Mo is crazy about menthol” accompanied by images of a male model with a bald head and bushy eyebrows.
Mo Farah took to Twitter to complain about the potential confusion; worried people would think he had endorsed the product. Ultimately, the Advertising Standards Agency (ASA) ruled that the ad effectively gave a “misleading impression”: while 'Mo' is a common nickname, the model's head and eyebrows were sufficiently “reminiscent” of the athlete. so that viewers would associate it with him. Mo Farah as one of the best-known figures in the United Kingdom with that name.
Herein lies the crux of the matter: While the image was not a deepfake, it was similar enough to confuse viewers, and the same applies to deepfakes. If it is misleading enough to confuse someone else, you have reason to consider litigation.
Instead, as a business, you need to consider all possible interpretations of images to ensure you can use generative AI without getting caught up in legal complications. Just because the AI stock photo you're using to headline a LinkedIn article looks generic, doesn't mean it is. Voice, gestures and context are factors that are taken into account, but ultimately the question is: did it confuse viewers?
Current legislation on deepfakes
To date, there is no law in the UK that provides blanket protection against deepfakes. Instead, individuals are protected under a variety of regulations depending on the nature of the deepfake.
Online Safety Law
Advertising standards agency
The ASA intervenes when adverts contain misleading content. As for deepfakes, this mainly occurs in the case of fraudulent ads or clickbait; It is unlikely to affect ordinary people, and those who run businesses should know not to use celebrities, who have usually trademarked their image, gestures and voice, for example.
Most interesting, however, is the gray area of similarity that deepfakes are meant to exacerbate. One thing that the Mo Farah case particularly highlighted was that resemblance does not have to be identical, it only needs to confuse the viewer enough to create reasonable doubt. Since generative AI is based on copyrighted material, there is now a danger that companies could accidentally breach ASA regulations by using generative AI results that are accidentally similar enough to real-life celebrities. as to cause confusion. Intent in this case is not relevant: the only thing that matters is whether viewers have been misled, and this could land companies in trouble with the ASA.
Civil Law
The last resort for UK citizens is civil law. While there is no specific legislation that addresses deepfakes, people could resort to it in the following situations:
- Privacy: A deepfake could be considered a breach of the right to privacy, especially if they can prove that the creator used personal data to create it, which is protected by the UK GDPR and the Data Protection Act 2018.
- Harassment: Multiple deepfakes intended to cause alarm or distress could form the basis of a harassment lawsuit
- Defamation: If a deepfake has an adverse effect on a person's reputation by portraying them in a false or harmful manner, there is potential for a defamation case to be brought.
In such cases, it would be best for a person to seek legal guidance on how to proceed.
The future of deepfake legislation
So where does the legislation go from here? Hopefully, go ahead. The UK government took a considerable step back on the issue in the run-up to the election, but with the EU AI Act leading the way, we are likely to see new regulations soon.
The biggest problem, however, is law enforcement. Between the three bodies we have discussed above, the Online Safety Act, the Advertising Standards Agency and UK civil law, all focus on regulating production on a case-by-case basis. Currently, the United Kingdom does not have any regulations or proposals to introduce greater security measures around the programs themselves. In fact, many are celebrating the lack of regulation in the UK following the EU AI Act, hoping it will lead to a boon for AI industries.
However, current strategies remain inefficient. Victims need legal support to advance cases, and creators continue to escape repercussions. Widespread control of technology is also not practical; Just look at the GDPR to get an idea of this. Efforts to do so, such as the EU AI Law, still fail to address the problem, as open source generative technologies remain completely unregulated.
It appears that an independent arbitrator (an Ofcom for AI) will be needed, but how independent or effective this will prove remains to be seen. Let's just hope that the new Government manages to achieve some kind of balance between industry, personal protection and business innovation.
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