Deepfakes, Risk And Liability

As artificial intelligence (AI) advances it creates both benefits and dangers, and few applications illustrate that fact better than the emergence of "deepfakes." A portmanteau of "deep learning" and "fake," deepfakes are AI-generated audios or even videos of real people saying fake things. While, in the case of videos at least, it is still reasonably easy to distinguish between a deepfake and the genuine article, the gap is narrowing and it may not be long before seeing is no longer believing.

Most of the concern about deepfakes in the popular press centers around its more sensational (and appalling) uses, such as creating fake pornography of real women or putting scandalous words in a politician's or CEO's mouth, with obvious potential for electoral or share price manipulation. But while less sensationalist, deepfakes' potential uses and misuses in the corporate world should be of concern for any business. Below is a list of some of the legal issues that deepfakes can create and the applicable law.

Intellectual Property

In cases involving misappropriation of an image, it is natural to think of invoking intellectual property rights such as copyright and trademark. The holder of the copyright in the original video on which the deepfake is based (if it is not the deepfake creator himself) would be able to file suit to seek damages and even to prevent the use of the video itself, assuming of course that there is practical way to enforce the judgement. Moreover, even if the deepfake creator owns the rights to the video, if the business targeted in the video sees its logo, slogan or other intellectual property used without permission then it would also have grounds on which to bring an action for either copyright or trademark infringement. While intellectual property rights include "fair use" exceptions such as parody and satire, actual malice on the creator's part would likely prevent them from being invoked.

Endorsements

While the use of manipulated images to generate celebrity endorsements is not new, the ability to have that celebrity appear to be speaking in a video creates a whole host of new concerns. Section 5 of Quebec's Charter of Human Rights and Freedoms (the Charter) states, "Every person has a right to respect for his private life," whereas article 36(5) of the Civil Code of Québec (the Civil Code) provides that the use of an individual's name, image, likeness or voice may be considered an invasion of privacy if it is for a...