Creators of deepfake pornography may exist in a legal vacuum, with existing laws unable to properly govern or penalise their culpable conduct As artificial intelligence (AI) technology continues to develop, its utility for ordinary law-abiding citizens grows, along with its potential for abuse. However, the breakneck speed of development often leaves the law playing catch-up in confronting these new societal harms.
The use of AI to create pornographic images of a person without their consent is a growing problem not limited to Hong Kong, and will only grow more prominent as the technology develops.
Deepfakes, which are generated by AI neural networks, allow a person to upload images of a person's body or face, which are then used to create pornographic images resembling that person, producing deepfake pornography.
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While it has long been possible to digitally alter images of real people so as to make them resemble pornography (e.g. by using tools like Photoshop), deepfake pornography can be created completely digitally, in large quantities, instantaneously, and on freely available websites.
A prime example is the use of celebrities' faces and/or voices with AI tools to create falsified videos or even pornographic photos.
From a lawsuit commenced by movie star Scarlett Johansson against an AI app developer that used her likeness and voice to create ultra-realistic images, to singer Taylor Swift being the subject of deepfake pornography, the escalation in the purposes and culpability in using deepfake technology has led to several countries implementing legislation to combat this new trend.
Compared with existing crimes such as voyeurism or the taking of intimate images, which must be committed in the physical world, deepfake pornography can essentially be created and spread with a mere push of a button, which can make it especially challenging for law enforcement authorities to control.
The threat posed by deepfake pornography to one's bodily autonomy, right to privacy, and reputation is therefore extremely serious.
Specialists in sexual crimes have noted that deepfake pornography, despite being "artificial", can be as damaging to its victims as "genuine" voyeur or intimate images, and should be considered a form of image-based sexual violence.
The reality of this new form of sexual violence, as pointed out by the Equal Opportunities Commission, is that it primarily targets women and young girls. Without legislative intervention, this pernicious trend could spread throughout schools, workplaces, and society at large.
However, there may be difficulties with prosecuting individuals who have used or created deepfake pornography with the current criminal law regime, since there is no customised offence to deal with images created entirely by digital means.
For example, section 159AAE of the Crimes Ordinance (Cap. 200) regulates the publication or threatened publication of intimate "images" without consent, but the existing definition of an "image" in section 159AA is defined as a "photograph, video recording, film, or a static or moving visual record."
On its face, that offence may not encompass deepfake pornography that is "generated" entirely by digital means, which may not have involved the alteration of any existing image.
This can be contrasted with the definition of "child pornography" under the Prevention of Child Pornography Ordinance (Cap. 579), which includes a "computer-generated image".
Similarly, the existing offences of voyeurism or taking of intimate images under the Crimes Ordinance are premised on surreptitious observation and recording of the victim in the physical world. They are ill-equipped to capture the coming generation of deepfake pornography on a personal computer, which is completely digital and can be created and consumed entirely in private.
The corresponding offences of publication or threatened publication of intimate images (sections 159AAD and 159AAE) require the images in question to originate from a voyeurism or intimate-image offence, rather than just a deepfake, and would not cover possession without any threat of publication.
A digitally generated image which includes a person's face could possibly amount to "personal data" and the distribution of it could be subject to our privacy laws, but section 64(3) of the Personal Data (Privacy) Ordinance would not seem to cover creation of deepfake pornography for self-enjoyment, or distribution to a limited group of people without specific intent to cause harm to the victim or the victim's family.
In any event, the true wrong in the creation and/or distribution of deepfake pornography goes well beyond a misuse of personal data.
In other words, creators of deepfake pornography may exist in a legal vacuum, where existing laws may not be able to properly govern or penalise their culpable conduct.
Other jurisdictions have begun the process of reforming their criminal laws so that deepfake pornography can be effectively tackled, and may provide useful reference for Hong Kong's own reforms.
Singapore, for example, has criminalised digitally generated or manipulated content through its Protection from Harassment Act, and South Korea has made it a crime to create and also to consume deepfake pornography. The United Kingdom is also taking steps to create a new criminal offence dealing specifically with deepfake pornography.
Possible amendments or additions to existing offences should be closely studied to ensure that Hong Kong's criminal law keeps pace with the development of AI. This can provide a clear legal framework to effectively tackle the spread of deepfake pornography, so that victims are not discouraged from reporting these incidents to authorities and are adequately protected from the harm that deepfake pornography can obviously cause.
Derek Chan SC is a former vice-chairman and current council member of the Hong Kong Bar Association. He specialises in criminal and regulatory litigation.
Legal Tales is a new weekly column by senior members of the Hong Kong Bar Association presenting their perspectives on current affairs.
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