Digital Rights In 2023 - The Rise Of Deepfakes

Introduction

Digital rights are a combination of human and legal rights allowing one access to carry out various digital activities on the computer and other electronic devices and telecommunication networks. Digital rights have in many quarters been attributed to freedom of expression and right to privacy. The dilemma therefore is balancing the two - freedom of expression and the right to privacy. At what stage does one's exercise of his/her freedom of expression violate the right to privacy of another?

In advocating for digital rights, one protagonist is of the view that the rights obtainable offline should be applicable online. Therefore, everything prohibited offline should be prohibited online. Proponents of this school of thought are of the opinion that with the increase in human interactions and transactions in the digital space, it is vital to apply the principles of openness, accountability and participation in the governance of the digital platforms and to ensure that the rights of users on these platforms are protected. The impact of the recent pandemic (Covid-19) lockdown according to Amani Abou-Zeid (African Union Commissioner) has led to the transformation of the African digital space from a nitche market to mass adoption.

Accessibility to improved technology has resulted in increased participation in online activities, including a raise in deepfakes activities.

Digital Rights and Protection:

In an era where various rights exist, one may become weary of what digital rights are or how they can be protected. In some quarters as stated earlier, digital rights can be akin to human rights in the digital ecosystem. It is no gainsaying that human rights are universally recognized and form part of the supreme law of the related country (in Nigeria- the Constitution), but this seems not to be the case when it comes to digital rights. Digital rights are a relatively new concept in many countries in the world. The advancement of technology and the resultant increase in online engagements has created the need for a regulatory framework for digital rights protection, and digital ethics to prevent their violation. While we do not fault the argument that with the advancement of technology, the law is at best playing catchup, some countries yet to enact digital right Laws have attempted to ensure the protection of the rights of citizens in the digital ecosystem and prevent/limit violation through the application of the recognized human rights such as rights to privacy and freedom of expression, while developing case law in this regard. Consequently, one cannot address digital rights in isolation of fundamental human rights. Digital rights are basically human rights in the digital space. Hence, digital rights comprise right to privacy and freedom of expression.

It is on this note that Nigerians (Nigeria is yet to have a Digital Rights Act) who allege violation of digital rights allude to the provisions of the fundamental rights under the Constitution to seek redress. Hence, most digital right claims are filed under the Fundamental Rights Enforcement actions. Some notable cases are: Diana Ele Uloko v. Inspector General of Police¹. The Applicant sought redress from the Court against the Respondent on the ground that her freedom of expression was violated when the Respondent roughly apprehended her and destroyed her Samsung phone used to video the ENDSARS protest. the Court held that the Applicant failed to adduce evidence in support of her claim of violation of her right to freedom of expression. Similar decision was held in Rachel Ochanya Uloko v. Inspector General of Police²

In the fight for the protection of digital rights in Nigeria, the above two decisions of the Federal High Court may seem discouraging. However, the decision of the ECOWAS Court seem to shine a ray of hope in digital right protection not just in Nigeria but in the West African region.

The Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria³

The Community Court of Justice (ECOWAS Court) held that "access to the internet though not a right, in the strict sense, serves as a platform in which the rights to freedom of expression and freedom to receive information can be exercised, therefore a denial of access to the internet or to services provided via the internet, as a derivate right, operates as denial of the right to freedom of expression and to receive information".

Although access to internet is not in itself a right simplicita as stated in the above decision, it is however, a derivative right to freedom of expression where citizens share and obtain information. While we are on this topic, it is vital to differentiate digital right from data rights. Digital Rights address the human rights in the digital space/ecosystem while Data Right is the right to process, control and manage the data of persons. It also relates to the right of Data Subjects (persons whose information has been processed) to request correction of their data or prohibition of processing of their data.

Nigeria does not have a substantive Data Protection Act (the Nigeria Data Protection Regulation 2019 ensures personal data protection of Nigerians resident both within and outside Nigeria).

What is Deepfakes:

Deepfakes is the use of deep learning artificial intelligence to create images of fake events. The dark side of this technology is becoming increasingly worrisome. This is used to create convincing photos and is also applicable to audio (making use of 'voice skins' and 'voice clones'). Deep learning models such as Autoencoders and Generative Adversarial Networks have been used by deepfake algorithms to examine facial expressions and moments of an individual person and later synthesize facial images of another person making comparable expressions and moments⁴

The history of deepfakes can be traced to 2017 when a Reddit User named Deep Fake posted doctored porn clips on the site. The posted videos swapped the faces of celebrities- Gal Gadot, Taylor Swift, and Scarlet Johnson onto porn performers. The name deepfakes is derived from the use of deep learning artificial intelligence to generate images of fake events. It is not limited to videos but can be used to create convincing images (even creation of an entire fictional image from scratch) and audio to create "voice skins" or "voice clones". In September 2019, an AI Firm- Deeptrace stated that it found about 15,000 deepfakes videos online. 96% of the said deepfakes were pornographic while 99% of those mapped faces from female celebrities on to porn performers⁵. In addition, there is report of people falling victim to audio deepfake. One of such reports resulted in the Chief of a UK Subsidiary to a Germany Energy Firm's payment of the sum of £200,000 into a Hungarian bank account after receiving a phone call from someone who mimicked the German CEO's voice⁶.

There exist several examples of best usage of Deepfakes, like the recent creation of doubled videos of people speaking double languages (e.g., a YouTube video showing David Beckham speaking up to nine (9) languages including English, Chinese, and Yoruba to spread awareness about malaria and the control of the disease), Deepfakes can also be used to bring the dead back to life through 'resurrection technology'- an example of this is Snoop Dogg's music video created by visual effects (VFX) production company- Corridor Digital, to bring Tupac back to life⁷.

However, this write up will be focusing on the malicious use of the technology that raises cause for concern. At the onset of deepfake, it was targeted at celebrities (this is because, the creation of deepfakes requires high volume of images) and as stated earlier in the write-up, some female celebrities fell victim. However, it has been extended to the political class, business class and even individuals. For example, there was a wide spread of the manipulative video of the former US House of Representative Speaker that show that she was drunkenly stumbling on her words. Another was that of the Facebook CEO- Mark Zuckerberg addressing CBS News about 'the truth of Facebook and who really owns the future'. A troubling use of the technology is the launch of the 'DeepNude' that allows one to take an image of a fully clothed person and remove the clothes to create nonconsensual porn⁸.

Presently, the world is struggling to rise from the aftermath of the Covid-19 pandemic and find solutions to the ongoing Russia-Ukraine war, the increase in deepfakes (including ease of creation of same) gives raise to an increase in fake news the implication of which is a zero-trust society where it is easier to doubt the authenticity of specific events. For example, in July 2018, Cameroon's Minister of Communication dismissed as fake news, a video that Amnesty International aired showing the Cameroon Military executing civilians⁹. However, the Cameroon authority later announced the arrest of the seven soldiers depicted in the video and stated that they will be prosecuted¹⁰. Some of the legal concerns around Deepfake include copyright infringement, violation of data protection laws/regulations/guidelines, and defamation suits where the content exposes the victim to ridicule.

These have created big racketing issues that is unnerving to any internet user. The question that begs redress now is: how do you ensure digital right protection in the rise of deepfakes?

Deepfakes vis-à-vis Right to Privacy/Cybersecurity:

How do we ensure freedom of expression (in the face of the increasing malaise of deepfake) and the protection of ones right to privacy?

This quote from Oliver Wendell Holmes Jr: "the right to swing my fist ends where the other man's nose begins" succinctly describe the relationship between the two fundamental rights of freedom of expression and right to privacy. The two rights are said to be two sides of the same coin. Freedom of expression proposed that one is entitled to hold opinions, receive, and impart information and ideas without interference by public authority. This right includes the freedom to speak, to be heard and to participate in political, artistic, and social life, the right to know, the right to seek, receive, and share information through any media. The ENDSARS protest of 2020 in Nigeria buttresses the relevance of this right. However, the right to freedom of expression has faced various challenges in the recent advancement of technology which made increase publications of fake news, misinformation, revenge porn, cyberbullying/stalking, etc a nom in our world today.

The dilemma is; should the presence of these vices require the curtailment or partial clamp down of the right to freedom of expression? There is an Africa adage that says that 'you should not throw the baby away along with the bathwater'. The fact that all these vices exist and are on the increase does not mean that the right should be abolished. In exercise of this right, we must recall Oliver Wendell Holmes Jr's quote and know that one's freedom of expression should not serve to encroach on another's right to privacy. The right to privacy in general terms is the right to be free from unwarranted publicity. The right to privacy encompasses the right to protect one's intimacy, identity, name, honour, dignity, appearance and feelings.

It is important to state at this juncture that the freedom of expression has nothing to do with deepfakes. Freedom of expression as stated above relates to one's right to 'hold opinions', 'receive and impart information and ideas'. Deepfakes on the other hand (with the exception of the positive use mentioned earlier) is malicious misrepresentation of another's persons (character, voice, image, etc), this has nothing to do with freedom of expression rather it is a complete violation of another's right to privacy. One of the biggest threats to cybersecurity in contemporary times is the increase in Deepfakes. We have earlier attempted to briefly describe how deepfakes are created. Deepfakes violates the right to privacy of its victims. The improved technology and access to the technology, has made the creation of deepfakes less tedious and available to the public, consequently, victims of deepfakes are not only restricted to celebrities or political or business class but now extends to the common man on the street.

Some of the security issues poised by deepfakes includes identity theft (stealing of one's images), violation of the rights of privacy of victims, illegal data processing, defamation of character, increase in cyber-attacks, cyberbullying, cyberstalking etc. The circulation of a distorted image, video, audio or information of a person without his/her consent has often resulted in various forms cyber-attacks and victims being cancelled online.

Internet governance/regulations vs. freedom of expression

Although the right to freedom of expression is inherent as a human being, there is no society that can function efficiently without the existence of rules and order. In the absent of rules and order, man would live in a state of nature where it is the survival of the fittest and the mighty ruling over the week. To ensure adequate protection of all and curtail the vices poised by the rise in deepfakes, it is important to have in place internet governance that regulates the activities of users online.

The United Nation Working Group on Internet Governance (WGIG) in 2003 defined internet governance as the "development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet". The interpretation of the above definition is that internet governance is not strictly the duty of the government but of all stakeholders and discussion need to be held on security threats posed by deepfakes and the place of freedom of expression and right to privacy in the face of the threats. Some of the Laws, Regulations and Guidelines that govern internet usage in Nigeria are:

Social Media platforms also have a part to play in ensuring the safety of its visitors. Hence, the provision of Terms of Use Agreement dictates how various accountholders on the platforms are required to act. Consequently, any violations of any of its terms of use can lead to suspension of the accountholder's access to the account. For instance, President Donald Trump of the USA's twitter account @realDonaldTrump was in January 2021 permanently suspended for violation of Twitter's rule. Twitter stated that the account was suspended due to the risk of further incitement of violence. The suspension was later lifted in 2022. Also, TikTok Information Technologies UK Ltd and TikTok Inc was fined £12,700,000 for breach of the UK General Data Protection Regulation involving its process of data (the UK Information Commissioner stated that TikTok inappropriately granted UK children under the age of 13 access to its platforms and processing their data without obtaining parental consent, failure to provide information to users on how their data is collected and used, and failure to ensure that personal data of UK users was processed lawfully, fairly and in a transparent manner).

TikTok seems to provide enabling grounds for deepfakes creators. For instance, a simple search of 'Jason Statham' will review various deepfakes video about Jason Statham, yet these videos are allowed to trend on the app. Internet governance is a collaboration of both the public and private sector, all hands must be on deck to ensure a safe internet space for all.

Footnotes

^{1 Unreported- suit no: FHC/ABJ/CS/1519/2020, Judgement delivered on 26/08/2021}

^{2 Unreported, suit no: FHC/ABJ/1520/2020. Judgment delivered on 26/08/2021}

^{3 Application No. ECW/CCJ/APP/23/21, Judgement delivered on 22/06/2021}

^{4 Harshal Vyas: Deep Fake Creation by Deep Learning, International Research Journal of Engineering and Technology (IRJET), Vol:07 Issue: 07, accessed at https://www.irjet.net/archives/V7/i7/IRJET-V7I7168.pdf on 25/03/2023 @8:18pm}

^{5 Application No. ECW/CCJ/APP/23/21, Judgement delivered on 22/06/2021}

^{6 Harshal Vyas: Deep Fake Creation by Deep Learning, International Research Journal of Engineering and Technology (IRJET), Vol:07 Issue: 07, accessed at https://www.irjet.net/archives/V7/i7/IRJET-V7I7168.pdf on 25/03/2023 @8:18pm}

^{7 Harshal Vyas: Deep Fake Creation by Deep Learning, International Research Journal of Engineering and Technology (IRJET), Vol:07 Issue: 07, accessed at https://www.irjet.net/archives/V7/i7/IRJET-V7I7168.pdf on 25/03/2023 @8:18pm}

^{8 https://www.forbes.com/sites/bernardmarr/2019/07/22/the-best-and-scariest-examples-of-ai-enabled-deepfakes/?sh=76baad782eaf accessed on 25/03/2023 @8:46pm}

^{9 ibid}

^{10 https://www.amnesty.org/en/latest/press-release/2019/08/cameroon-trial-of-soldiers-for-killing-women-and-children/ accessed on 25/03/2023 at 8:59pm}

^{11 Section 22 of the Cybercrime (Prohibition, Prevention, etc) Act 2015}

^{12 Section 23 Ibid}

^{13 Section 24 Ibid}

^{14 Section 25 Ibid}

^{15 Section 14 of the FOI Act 2011}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.