Are Deepfakes breaching our rights to privacy? Part 1

In a society where mass media and technology is undoubtedly reigning, the rise of Deepfakes have left many victims questioning as to whether this potentially malicious technology is breaching our rights to privacy.

What is a Deepfake?

A Deepfake is a technique based on artificial intelligence (AI) which uses artificial neural networks to combine existing images or videos onto source images or videos. This advanced AI is predominantly used to create highly convincing revenge porn. If not porn, it can be used to manipulate the news, media and even politics to such an extent, that any average viewer could consider the video they are watching to be real.

Most would assume that individual’s who fall victim to Deepfakes would be in a position to enforce legal action however in the UK, there is currently no such thing as an ‘image right’ or ‘personality right’. This in the past, has resulted in individuals relying upon the law of tort (passing-off), defamation, and human rights to combat the right to their own image.

Right to privacy

In the UK, the right to one’s privacy is governed by Article 8 of the Human Rights Act 1998 (HRA) which has evidenced some instances where individuals have used the right to a ‘private life’ to protect their image.

In the case of Peck v United Kingdom [2003] EMLR 2, Mr Peck was caught on CCTV footage attempting suicide by slitting his wrists. Photographs from the footage were published on a local newspaper where his family had recognised him. It was held that Mr Peck’s rights provided by Article 8 of the HRA had been breached. The Courts noted that Mr Peck’s rights had been breached not based on the fact that he was carrying out a private act, but more so that the photographs had been published without his prior authorisation. It could therefore be argued that the case of Mr. Peck goes hand in hand with cases brought forward by the victims of Deepfakes as the individual whose image is being used in the video, is more than likely to have not given prior consent in it being circulated.

Another case that could be regarded quite prominent to an individual’s image is the landmark judgement of the Princess Caroline case (4 Von Hannover v. Germany 2012 (no. 2) 40660/08 [2012] ECHR 228). Here, the ECHR ruled that the princesses Article 8 right had been breached by a German magazine who were publishing photographs of the princess carrying out innocuous activities for a period of 10 years.

Therefore, although the provisions of the Human Rights in first instances appear to solely focus on the issue of intrusions into one’s private life, in some cases, it can be utilised to provide protection for an individual’s image, which in essence, could potentially extend to a victim of Deepfake AI.

The Courts are seeming to acknowledge associating the link between ones image and one’s privacy yet are trying as far as possible to frame Article 8 rights in terms of existing causes of action rather than give any specific dedicated law related to protection of image and without legislation dedicated solely for one’s image, the protection for victims of this malicious AI seems uncertain for now.

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