What Can The Law Do About ‘Deepfake'?

Introduction

In November 2017, videos began appearing on www.reddit.com featuring celebrities' faces superimposed onto actors and actresses in pornographic videos (and a surprising number of random Nicolas Cage appearances, most of which are thankfully not pornographic). Such face-swapping videos were made possible by software technology that uses machine-learning algorithms to analyze photographs of a target subject, "learning" the map of the target subject's face (the more photographs, the more accurate the portrayal), and then superimposing the target subject's "face" onto a video, sometimes producing extremely convincing results. Such open source technology is commonly referred to as "deepfake technology", the term "deepfake" being a portmanteau of the concept of machine "deep learning" and the word "fake." In January 2018, a free, user-friendly app was launched that made deepfake technology accessible to the general public and to those without technological expertise.

Deepfake technology has useful applications, such as in creating satirical, humorous videos or aiding with motion picture special effects and video content production. However, the creation of realistic, non-consensual videos (e.g. causing a person's likeness to be "transposed" or "transplanted" onto the speech and/or motion of others) and the ease with which such videos may be made has set off alarm bells in the digital world. In response, several large social platforms have revised their user policies to forbid users from uploading or sharing such non-consensual videos created by deepfake technology.

Legal Recourse: Causes of Action

The law generally does not evolve as quickly as technology does. That being said, in the case of videos created by deepfake technology, several causes of action existing in our current laws may be applicable (or extended to be applicable) in addressing the wrongs committed by a person's misuse or abuse of deepfake technology. Below is a summary of some of such causes of action:

1. Copyright Infringement

   Under the Copyright Act, R.S.C., 1985, c. C-42, a copyright owner has the sole right to produce or reproduce a work in any material form. In addition, the author of a work has moral rights, or the right to the integrity of the work, and this right is infringed where the work is distorted, mutilated, or otherwise modified.1 Undoubtedly, some deepfake videos, particularly those that are derived from copyrighted videos and photos, will infringe copyright laws based on the modification and republication of such videos and photos. Therefore, the owner of a video (onto which a "deepfake transplant" is done) and the owner of the photos (from which the "deepfake transplant" is sourced) may have remedies in copyright law which include injunctions, damages, and court orders to have the copies of the modified videos and photos destroyed. In addition, while the Copyright Act only provides copyright protection within Canada, similar laws exist in many other countries through those countries' ratification of international treaties such as the Berne Convention and the Agreement on Trade Related Aspects of Intellectual Property Rights.

2. Defamation

   Words, acts, and audible or visible matters that would tend to lower or sully a person in the eyes of a reasonable person are known at law as acts of defamation. Some deepfake videos may create false statements of fact about a person's presence and actions that lead to a loss of reputation of that person. Persons defamed by such videos may be entitled to damage awards and in some cases injunctive relief to prevent the defamatory material from being further disseminated.2 However, where there is a disclaimer that the video is fake or manufactured, an...