Deepfakes: Is Seeing Still Believing?

• Published date: 13 November 2019
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Privacy, IT and Internet, Data Protection, Copyright, Trademark, Social Media
• Law Firm: Herbert Smith Freehills
• Author: Mr Joel Smith, Laura Adde and Rachel Montagnon

The BBC thriller The Capture has captured the public's imagination with its portrayal of the relationship between deepfakes and CCTV evidence, and the serious legal risks associated with this technology.

In a recent report published by non-profit research institute Data & Society, deepfakes were found to be "no new threat to democracy", in that audiovisual media has always been manipulated, for a variety of purposes. What is new is the convincingness of deepfakes; the challenges associated with detecting them; and the risks associated with sharing deepfakes at speed and at scale on social media.

In this post we discuss the issues arising from such fakery and the possible legal counters.

What are deepfakes?

Put simply, deepfakes are fake videos created by artificially intelligent systems, predominantly trained using machine learning methods in order to generate or manipulate human bodies, faces and voices.

In the Data & Society report, deepfakes are distinguished from 'cheap fakes': fake videos made using package software or no software at all. Cheap fake techniques may include adjusting the timing of footage, deleting or cutting frames together, re-dubbing sound, or simply re-contextualising footage by changing narration, captions or video titles.

Once confined to academic research groups and Hollywood studios, deepfake technology is now accessible to anyone with enough computational resource to manipulate it. Consumer grade animation software can be used in conjunction with open source programs available on public repositories like GitHub to produce fakes of a similar quality to those created for legitimate purposes by computer scientists.

The first widely-known examples of amateur deepfakes appeared in November 2017, when a Reddit user called "deepfakes" uploaded a number of fake videos depicting celebrities' faces grafted onto pornography.

Fake history

It is important to remember that audiovisual fakery is nothing new. Since the beginning of motion pictures, efforts have been made to create visual and audio effects using methods other than filming or recording them. Historically, these effects were achieved by manually altering existing footage in the cutting room, or later, in special effects departments. More recently, computer-generated imagery has advanced to a point where fakes in the film industry are now not only remarkably convincing, but commonplace - such as the recreated version of the late Carrie Fisher in recent Star Wars movies.

However, what is new is the potential for deepfake technology to help audiovisual...