ith the fast development of artificial intelligence and new technologies, new problems also arise that require solving. One of those problems is a certain socially unacceptable and harmful behavior of misusing someone’s image to create deepfake pornographic content without consent. This problem exists because legal systems are, by nature, slow to react. They can’t predict or regulate ALL of the future social changes and phenomena in advance. The problem in question is one of the mentioned phenomena. Countries are just beginning to tackle this problem in different ways. Some of them are more efficient than others, but they all seem to go in the direction of criminalizing this behavior. This indeed is the right direction because it’s justified to establish criminal protection when serious consequences may occur. Such behavior may cause immeasurable damage to the person whose image has been misused.
What is a Deepfake?
In the simplest terms, a deepfake is a video in which one’s image is replaced by another person’s image with the help of artificial intelligence and machine learning technology. The result is a video in which the latter is portraid as the main actor of the original video, even though that person wasn’t even filmed.
This technology is advancing so much that it has become difficult to distinguish a real recording from a deepfake without special analytical tools. It’s also becoming more accessable, so deepfaking tools are made available to a larger number of people, further exacerbating the problem.
This technology is useful in the film industry, marketing and other industries where the need for image replacement may arise. The use of this technology is legal and legitimate when used within the legal framework and with consent for the use of one’s image. The problem arises when someone’s image is used without permission. Based on data from an American company Home Security Heroes, 98% of all deepfake content on the Internet is pornographic content. According to the same data, 99% of all individuals who are the subject of deepfake pornography are female.
How is this regulated in the criminal legislation of the Republic of Serbia?
According to the current state of our criminal legislation, the creation and sharing of deepfakes is not explicitly regulated. However, this does not mean that the perpetrator will not be liable if the creation and distribution of the deepfake is an act of committing an already prescribed criminal offence. Thus, if someone blackmails someone with a deepfake, they will absolutely be responsible for the criminal offence of Blackmail. The same principle applies to other criminal offences, such as Coercion, Endangerment of safety, Sexual Harassment, etc.
If we limit ourselves exclusively to the creation and sharing of deepfakes, the only criminal offenses that can theoretically be applied at this moment are:
- Unauthorised Photographing from Article 144. of the Criminal code and
- Unauthorised Publication and Presentation of another’s Texts, Portraits and Recordings from Article 145. of the Criminal code.
Unauthorized photography is commited by anyone who, without authorisation, makes a photographic, film, video or other recording of another thereby significantly violating his personal life or who delivers such recording to a third party or otherwise enables him to familiarise himself with contents thereof.
Unauthorised Publication and Presentation of another’s Texts, Portraits and Recordings is commited by anyone who publishes or publicly presents another’s text, portrait, photograph, film or a phonogram of a personal character without consent of a person who has drawn up the text or to whom it is related, or without consent of the person depicted on the portrait, photograph or film or whose voice is recorded on a phonogram, or without consent of the person whose consent is mandatory by law and thereby significantly violates the private life of that person.
However, there are two important issues related to the application of these criminal offences.
Issue 1: Do these criminal offences only apply to situations that actually happened?
The legal definitions of these crimes do not explicitly mention photomontage or any manipulation of photo/video content. This leaves room for different interpretations as to whether the object of these criminal offences can be only the original recordings or also content created by manipulation of photo/video content. It could be reasoned that these criminal offences may not be applied to deepfakes because they are not videos of a real situation, but a fictional, fake one.
Issue 2: Can manipulated photo/video content violate the personal life?
What is specific about both criminal offences is the prescribed consequence – a significant violation of the personal life of the depicted person. If there is no significant violation of a the persons personal life, criminal offences were not commited. In this regard, an important question arises: can a fictional situation (fake content) violate the personal life at all? The victim didn’t do anything that he doesn’t want to be recorded or published after all. A photomontage only creates a fake, fictional situation, correct?
One of the court’s positions
These two issues were actually the subject of the criminal proceedings for Unauthorised Publication and Presentation of another’s Texts, Portraits and Recordings and Insult. According to the facts of the case, the defendant photoshopped the face of the victim on the body of an actor of an existing vulgar, sexually explicit photograph, thereby creating a new photograph from which it appears that the victim was photographed in a sexual relationship with another man. He showed this photo to certain people, thereby publishing it. The defendant was found guilty and his appeal was rejected. His attorney submitted a request for protection of legality, which was rejected by the Supreme Court. In the specific case, the court took the position that it does not matter whether it is an original photograph or a photomontage, because it objectively represents content of personal character that relates to the personal and private life of the victim. The form or technique in which the photograph was created is not essential for determining if Unauthorised Publication and Presentation of another’s Texts, Portraits and Recordings was commited.
Difficulties for the victim
If the situation was not difficult enough for the victim, Public prosecutors offices don’t act ex officio for Unauthorised Photographing and Unauthorised Publication and Presentation of another’s Texts, Portraits and Recordings. A private criminal lawsuit must be filed.
When filing a private criminal complaint, the injured party acts as the prosecutor and must prove that the defendant committed a criminal offense. This further implies higher procedural costs for the injured party, which will not be reimbursed in the event of an acquittal or dismissal. Finally, criminal proceedings cannot be conducted against an unknown (NN) person. Thus, the injured party must find out for themselves who committed the criminal offense before initiating criminal proceedings.
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