What Has The Law Done About "Deepfake"?

• Law Firm: McMillan LLP
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Technology, Privacy Protection, Libel & Defamation, New Technology
• Author: Paola Ramirez and Pablo Tseng
• Published date: 22 May 2023

In our previous articles from 2018 titled What Can The Law Do About 'Deepfake'? and What Can and Should the Law Do About 'Deepfake': An Update, we outlined legal recourses that are available to victims of deepfake technology, including a claim for copyright infringement and defamation. At the time of those publications, Canadian courts had not yet recognized the tort of false light. However, courts in Ontario and British Columbia have recently adopted the view that such tort preserves an important privacy right that existing invasion of privacy torts fail to protect: the right to control the way in which a person presents themselves to the world. This bulletin provides an overview of the tort of false light in Canada and its potential use in addressing the wrongs committed by those who misuse deepfake technology.

Recent Developments in Deepfake Technology

In general terms, "deepfakes" refer to text, image, audio or video manipulated using artificial intelligence and machine learning techniques.¹ The dangers of deepfake technology were first made publicly apparent in 2017, when an anonymous user uploaded to Reddit fabricated pornographic videos in which the faces of Hollywood celebrities were superimposed onto those of the original actors and actresses.² Nowadays, virtually anyone can create deepfakes with free publicly available software programs. ³ Due to advancements in artificial intelligence and the public availability of images and videos, the quality, sophistication, volume and use of deepfake content has expanded, examples of which are provided in the footnotes below.⁴, ⁵, ⁶

Canadian case law on the subject of deepfakes is highly sparse. Reference to deepfakes was made in R v Larouche, a Quebec decision in which an accused was charged with possessing photo and video files of child pornography, with some of those files constituting deepfakes.⁷ In that decision, the Quebec Court described deepfakes as "electronic montages allowing the face of one person to be included on the body of another" but did not expand on the subject further.⁸ As of the date of this bulletin's publication, there have been no documented cases in Canada in which a claimant has sought relief after being victimized by deepfake technology.

Recognition of the Tort of False Light

Since the tort of false light targets the wrong of publicly misrepresenting a person, it could be used as an additional recourse to address the wrongs committed by a person's misuse or abuse of deepfake...