A 'right to deepfake' in Europe? Assessing the regulation of deepfakes under the lens of Article 10 ECHR

A 'right to deepfake' in Europe? Assessing the regulation of deepfakes under the lens of Article 10 ECHR

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Much has been written about deepfakes and other forms of manipulated or synthetic media from the viewpoint of policing and sanction (i.e. protecting against or preventing the harm caused by deepfakes). These analyses have raised legitimate concerns as to how deepfake technology can be used to produce image-based sexual abuse, the extent to which it contributes to existing problems caused by disinformation and misinformation in the lead up to elections and referendum processes, and its use by foreign adversaries to undermine national security. However, we argue that applications of deepfakes are likely to mature and expand to other, legitimate, uses as the technology develops. For this reason, we argue that legal analyses and regulatory frameworks should be conceived with the capacity to frame deepfakes within a spectrum of applications ranging from abusive to legitimate. With this in mind, and without underestimating the harms that may emanate from deepfakes, we explore instances where deepfaked content may be worthy of protection under the law. We argue that in some instances, there is, or can be, a right to deepfake, namely a right to make and share deepfakes, even without the consent of individuals represented in them. In this context, we present some examples where, in our view, the act of making and/or sharing a deepfake would qualify as protected expression under Article 10 of the European Convention on Human Rights. We argue that deepfakes represent a novel context under which the right to freedom of expression (which we maintain is engaged for deepfake creators, platforms that host such content and individuals who disseminate such content) may clash with the right to private and family life of deepfaked subjects, for instance, a public figure whose likeness is used in a deepfaked video without their consent. We examine this clash from the perspective of the ECHR and in light of the case law of the European Court of Human Rights. We explore the tension between these two rights by way of two case studies. We rely on these as examples to demonstrate that there are instances where the deepfake creator’s freedom of expression is likely to take precedence over the right to private and family life (Article 8 ECHR) of the deepfaked subject. We argue that in such circumstances, a right to create a deepfake without the depicted person’s consent is likely to be recognised and protected. On this basis, we conclude that absolute, state-imposed bans on the creation of non-consensual deepfakes are likely to amount to a disproportionate restriction of freedom of expression.

Dr Mathilde Pavis is an Associate Professor in Law at the University of Reading. Dr Pavis holds a Licence and Maitrise in Law from the University of Rennes (France), and an LLM and PhD from the University of Exeter. Her research primarily focuses on the areas of intellectual property law (copyright, performers’ rights and trademark), cultural heritage regulation and their respective intersections with new technologies, creativity, performance and disability broadly understood. Her more recent work investigates the legal protection of people's voice, face, body and likeness in light of AI-driven synthetisation.

Dr Dimitrios Kagiaros is an Assistant Professor in Public Law and Human Rights at the University of Durham. He holds an LLB in Law from the National and Kapodistrian University of Athens, School of Law and an LLM in International Human Rights Law from Brunel University in London. He completed his PhD at the University of Hull, focusing on whistleblower protection in the European Court of Human Rights. His research interests include the European Convention of Human Rights, the impact of the European sovereign debt crisis on human rights, and the case law of the European Court of Human Rights in relation to Freedom of Expression. Dimitrios serves as a member of the editorial board of The European Convention on Human Rights Law Review (Brill Publishing).

Dr Mathilde Pavis & Dr Dimitrios Kagiaros
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School of Law
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