DEEPFAKES are a phenomenon that have become increasingly popular in recent years. The best example of a DEEPFAKE that wreaked havoc in the world stage is the infamous speech given by Ukrainian President Volodymyr Zelensky asking his troops to surrender to Russia’s invasion which appeared on Facebook and YouTube, Telegram and the Russian social network VKontakte.1 The author of the ABA article reminds the reader that Deepfakes are not a new phenomenon brought on by the fourth industrial revolution we are currently experiencing.
In 1950, for example, Senator Millard Tydings challenged Senator Joseph McCarthy’s allegations of widespread communists working against US interests inside the US State Dept. In response, McCarthy’s staff created a photograph that was essentially a composite of two distinct images showing Tydings seemingly chatting with Earl Browder, then head of the American Communist Party.2
People do trust their vision more than any other senses. This is what makes such deepfakes that much more potent as a way of altering a person’s belief as to what they are seeing is a real image or the content is real. It is an extremely dangerous tool and one in which must be approached with caution. It is critical that everyone in society today do not panic, but rather prepare.
The question of what can be done from a legal standpoint is worth taking note. Every person enjoys the freedom of expression under our Charter of Rights and Freedoms. Due to the global nature of online platforms and the costs associated with civil lawsuits can be large obstacles for plaintiffs. Criminal liability could be pursued by the relevant authorities if provisions in our Canadian Criminal Code can be utilized such as impersonation and defamation as well as cyberstalking, anti-pornographic statutes and finally provisions concerning fraud.
The use of forensic scientists would be required in many instances so as to ensure a strong case is built to combat such technological manipulation. However, forensic scientists raise the spectre of the legal defence for a deepfake case arguing the authentic video is fake. This then shifts the burden of proof onto the prosecution making the complicated scenario where one has to prove a negative beyond a reasonable doubt. That may, in the end, prove to be legally impossible.3 The challenge is to ensure equal and fair justice is achieved where visual evidence is confronted with the existence of “deepfakes”.
David H. Davis of Davis Cyber Law specializes in strategic risk management, incident response, privacy & data protection, and advocacy. He can be reached by email at david@daviscyberlaw.com or by telephone at 204-956-2336. We are also on the web at www.daviscyberlaw.com
