Fake it till you make it: an examination of the US and English approaches to persona protection as applied to deepfakes on social media
In both the UK and US, deepfakes are likely to be addressed by current law. In the UK, passing off, while more complex than the right of publicity, could be helpful to address deepfakes where they are used in a way that conveys endorsement. For non-endorsement uses, defamation might be grounds for legal action. In the US, the right of publicity could be deployed. However, these causes of action inadequately address the potential of deepfakes to sway public opinion, damage the reputation of the individual depicted, and impinge on privacy and dignity of the individual if used in pornography. It may be challenging to track down the uploader, and the delay between commencing legal action and receiving an injunction can be too late if the deepfake goes viral. The potential velocity and amplification of deepfakes on the web allows for nefarious uses of this relatively new technology.
While the creation of rules in this regard are useful, there is also a need for technology to facilitate content moderation. As deepfake videos become increasingly difficult to distinguish from real footage, news organisations such as Reuters are conducting their own deepfakes experiments to stay one step ahead of the fake news disseminators. Detection of deep fakes is still largely an open research problem. Deepfakes are already approaching the limits of human perception to discern images. Automated techniques have focused on heuristics such as blinking patterns or incongruities in perspective and shading. It is unlikely that these will remain effective for very long. The arms race will continue for the foreseeable future, and as such detecting deepfakes may well remain an aspirational goal rather than something that can be relied upon as a solution.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution, which will be included in our special Image Rights Issue, will be made available on Advance Access soon]