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13.08.2024
NEW TECH & INNOVATIONS

Criminal liability for publishing and disseminating deepfake material

Despite its undeniable benefits, developing new technologies also has its dark side. The widespread access to advanced software using artificial intelligence and the simplicity of its use means that these tools are increasingly being used to commit crimes.

Audiovisual material created using the deepfake technique, which uses the image and voice of a real person to communicate fictitious content to extort money, has recently become infamously popular. Thanks to this technique, in recent months, social media has been flooded with recordings of politicians, businessmen, sports stars, and influencers urging web users to invest money via fictitious platforms, guaranteeing unbelievably high returns. The quality of these videos is so high that many Internet users treat them as speeches from a well-known person without realizing that cybercriminals have just targeted them.

Although using artificial intelligence to commit crimes has a relatively short history, Polish law makes it possible to hold persons publishing and distributing deepfake materials criminally liable. It also makes it possible to protect the rights and interests of persons whose image or voice has been unlawfully used to generate such materials and persons who have been deceived and suffered financial damage due to using content manipulated in this manner.

Identity theft

The publication or dissemination of deepfake material may fulfill the offense of identity theft, as described in Article 190a of the Polish Penal Code. Under the quoted provision, a perpetrator who, by impersonating another person, uses their image, other personal data, or other data enabling their identification, thus causing them material or personal damage, is subject to a penalty of imprisonment from 6 months to 8 years.

This provision, therefore, applies to situations where the perpetrator of the offense uses the victim’s image or other data in a manner that misleads the recipients as to the actual identity of the person using these attributes. Thus, criminal behaviour based on this provision may undoubtedly include advertising, promoting or selling goods and services (including fictitious ones, aimed at extorting money) using someone else’s image and voice, modified with the deepfake technique. For obvious reasons, the victims of this type of crime are most often well-known people, enjoy public trust, and are successful in a specific area of life.

The condition for criminal liability of the perpetrator for the act in question is the infliction of damage on the victim. This can be both pecuniary damage (actual loss or lost profit) and non-pecuniary damage (damage to reputation, loss of confidence, mental suffering).

Fraud

Activities such as advertising or selling fictitious goods and services or promoting fictitious charity collections using another person’s image modified using the deepfake technique may also constitute the offence of fraud. Under Article 286 § 1 of the Penal Code, a perpetrator who, to gain a material benefit, leads another person to an unfavourable disposition of property by means of deception, is liable to imprisonment for six months to eight years.

In this case, the essence of the fraud usually boils down to making the fictitious business credible using the image and authority of persons enjoying recognition in a given environment. In this way, the perpetrators of the crime create a false impression in the victim about the promoted product or service (its authenticity, legitimacy, reliability, identity of the seller or provider of the service, possible rate of return on investment, etc.), inducing the victim to take a decision of unfavourable disposal of property, which he would not take under everyday motivation.

Fraudulent deepfake material constitutes offences with exceptionally high social harm. There is no doubt that this content is primarily targeted at people who are less familiar with the realities of the Internet and susceptible to being misled by technically manipulated material. These people include, in particular, the elderly, the disadvantaged, and those seeking to improve their financial situation.

Defamation and insult

In some situations, the publication or dissemination of deepfake material may exhaust the elements of defamation or insult to the person whose image or voice has been used. This is the case when the perpetrator’s aim is not to present that person as authoritative and trustworthy but to publicly ridicule, humiliate, or insult them. The scope of criminalisation may, therefore, include, inter alia, the publication of pornographic material generated using the victim’s image or the presentation of the victim’s image in any other derogatory manner.

The offences of defamation and insult, regulated respectively by Articles 212 and 216 of the Penal Code, committed using mass communication (including the Internet), are punishable by a fine, restriction of freedom or even imprisonment of up to one year. Both offences are prosecuted by private prosecution, which means that the enforcement of criminal liability of the perpetrator takes place based on an indictment drawn up and brought directly to court by the victim.

Protection of the rights and interests of the victim in criminal proceedings

Polish criminal procedure contains regulations that enable victims of crimes committed using deepfake materials to protect their rights and interests during criminal proceedings and to pursue civil claims as part of such proceedings. The victim has the right to, among other things:

  • actively participate in the proceedings as a party to the trial;
  • obtain compensation for damage suffered as a result of a criminal offence;
  • obtain compensation for the harm (non-pecuniary damage) suffered as a result of the crime;
  • to request that a conviction be made public;
  • in some cases, to request a public apology from the offender.

Criminal proceedings – due to the broad rights of the victim – can, therefore, be an attractive addition to the arsenal of civil remedies available to a person wishing to pursue a claim for damages or protection of personal rights in connection with the unlawful publication or dissemination of deepfake material.

#artificial intelligence #criminal liability deepfake #deepfake #new technologies

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