With the upcoming windfall of political agendas, campaign tactics and character assassination on our social media feeds; there is one thing that the electoral law is potentially not prepared for:
Deep fakes.
What is a deep fake?
From international pop stars, such as Taylor Swift, to world leaders, such as Narendra Modi the Prime Minister of India; the misuse of deep fakes is far-reaching.
Put simply, it uses technology called “machine learning” that creates a digital version of a person.
It analyses images and/or audio to mimic mouth movements and their voice to generate convincing photographs, videos or even live video calls.
Examples of Deep Fakes
Deep fakes range from being used online as entertainment by:
- Creating fake, short clips of Keanu Reeves or Tom Cruise dancing;
- Using Morgan Freeman’s image (and a voice actor) to create a very convincing video of him; or
- To see how Robert Downey Jr and Tom Holland would have fared in the 1985 film “Back to the Future” by creating a clip of them as Marty McFly and Emmett “Doc” Brown;
To being used for sinister reasons:
- Using Stephen Fry’s voice without his consent by extracting his voice from his Harry Potter audio books to narrate a historical documentary.
- Appearing as the CFO of a multinational company during a video call to authorise a transfer of $25m into the cybercriminal’s account.
- Where minors were targeted by a fellow student who used a mobile app to deepfake sexually explicit photographs by uploading a single image.
With 56.2 million social media users in the UK, the cyber criminals have a giant pool of data to use.
They can extract that data to test their platforms, steal identities or, in the case of MPs, release deepfake footage to damage electoral campaigns.
Legal implications
So, you find an AI-generated video of you on social media, created using photos and audio that you have published publically on social media; what legal protection do you have?
If the deepfake is sexually explicit, it is illegal and punishable by an unlimited fine and imprisonment.
If it is not, the answer is less certain.
The law on defamation, privacy and data protection are not (yet) equipped to deal with a claim of this type.
The first and potentially biggest issue, is trying to locate the person responsible:
- A video or photograph can go viral in seconds.
- The original video can be removed with no trace.
- The victim is inevitably faced with the “whack-a-mole” problem of trying to remove the posts that appear on multiple platforms.
- A perpetrator that maliciously publishes a defamatory or damaging deep fake, particularly of a public figure, will likely be sophisticated enough to conceal their identity and IP address without much effort.
- The person responsible could be in another jurisdiction; raising issues of enforcement overseas.
If the claimant is able to identify the person, and assuming that person is within the jurisdiction, they must then establish that each element of the particular cause of action is met.
The issue here, is that there is simply no case law dealing with this specific issue in England and Wales.
It is an untested legal matter. Until legislation is implemented, or the current law is challenged in court, the legal implications are simply not known.
How could this affect the 2024 election?
The use of this technology in politics is certainly not unheard of:
- It was reported earlier this year that more than 100 video adverts impersonating Rishi Sunak were promoted on Facebook. In one deepfake advert, BBC newsreader, Sarah Campbell, appears to read out breaking news of the Prime Minister “secretly earning colossal sums from a project that was initially intended for ordinary citizens”.
- In 2023, fake audio of Sir Keir Starmer was published on X (formerly Twitter) of “him” abusing staff members and criticizing Liverpool.
- It was also utilised in the Indian elections to doctor a video of the home minister; to deepfake celebrity endorsements of parties; and to distort speeches of the Indian Prime Minister.
Whilst the UK has very strict electoral rules in order to promote fairness and honesty during campaigns, the legislation is historic and arguably outdated with the advances in technology.
Earlier this month, Gregory Campbell MP addressed parliament on this very issue:
“…the pace of development in such technology is concerning and the impact of its use either from domestic or international sources could be far-reaching. As we look towards a General Election there is a need for continued action to tackle this, alongside increased awareness amongst the wider public of the existence and capability of such technology and the need for everyone to check the veracity of content which they may see shared online.”
During a parliamentary debate on the subject on 8 May 2024, Viscount Camrose, reminded the house that there is already a range of criminal offences “such as the foreign interference offence, the false communications offence and offences under the Representation of the People Act… [to] address the use of deepfakes to malignly influence elections.”
He also mentioned that the Joint Election Security and Preparedness Unit set up for the election will “conduct rapid operational rebuttal” should deep fakes emerge.
Whilst the technology is not new, this will be the first general election in which deepfakes will likely be a focus for government.
It remains to be seen as to whether the current legislation and the various provisions put in place will be enough to tackle the problem.
In the meantime, the public would be best served fact-checking all they read on social media and give no credence to viral posts until they have been verified by the person concerned.
Griffin Law has pioneered the fusion of privacy, confidence, defamation and harassment law for the benefit of its clients.
We are the recognised experts in this field of law.
If you are the victim of a deepfake or have been accused of being a perpetrator of the same, talk to us.
Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation. For more details of our services please email justice@griffin.law or call 01732 52 59 23.
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