DeepFakes, Nudification, Gender-Based Image Violence, and The Law
With the Convenience of Technology Comes Those Who Will Weaponize It In New Ways
CAVEAT: In writing this article, we looked at several apps and software products on the market that were the subject matter for this posting. We will not be mentioning these products by name, given that we don’t want to give them more oxygen specific to their use when it comes to gendered-based image tech violence. Suffice to know that they do exist and are presently being used!
We here at The White Hatter, much like other online safety advocates, have been warning about how “deepfake” technology can be used as a gender-based weapon. Deepfake technology allows the power of computer-based artificial intelligence (AI) to either:
1. Morph a face into a picture or video (like porn). Think photoshop with a push of a button, or
2. Apps and software that allow a user to digitally remove clothing from a picture and replace it with a very real-looking AI-generated rendering of what it believes the person would look like nude.
Both are becoming known as “deepfakes” or “nudification” apps.
Here’s a great example of a deepfake video (no nudity) where they use the likeness of Tom Cruise to demonstrate its capabilities https://www.youtube.com/watch?v=iyiOVUbsPcM. After watching this video, we believe you will have a better understanding of how this technology could be used when it comes to gender-based image violence.
In the recent past, we here at The White Hatter have helped both youth and adults deal with pictures where their face was photoshopped into a porn picture which were then published and distributed as a weapon. In those cases, using forensic software, we were able to confirm that the picture had been digitally altered. What makes the new deepfake and nudification technology challenging, unless really expensive forensic technology is used, it can be very hard to determine if a morphed picture or video is real or not. Unfortunately, to the average person who views these morphed pictures or videos, it will appear to be very real. In fact, research has shown that targets of this kind of tech violence can “….experience harms similar to those suffered by survivors of sexual assault including trust issues, post-traumatic stress disorder (PTSD), anxiety, depression, suicidal thoughts, and other mental health effects” (1). Once the weaponized deepfake is out there publicly, the intended emotional, psychological, physical, and social damage to its target is done.
Some will say that the weaponized use of deepfake and nudification software is nothing more than moral based panic, and not something that is actually taking place. As a licenced online investigative company, we can share with you that such technology is being weaponized, shared, and used, case in point - the “Incel” movement.
What is an “Incel” (involuntary celibate)? According to Oxford Dictionary an Incel is:
“a member of an online community of young men who consider themselves unable to attract women sexually, typically associated with views that are hostile toward women and men who are sexually active.”
Incels hate those who identify as female, and will often use technology to target them. Incels are not just adults, we here at The White Hatter have helped one group of Canadian professionals who were dealing with a teen Incel movement in their jurisdiction.
Here is a discussion from an Incel forum that we located, where participants are actually sharing links to deepfake and nudification technology, so that others in their movement can use it as a weapon.
Given that deepfake and nudification technology is fairly new, it has not really been tested in the Canadian courts specific to its legal consequences. However, we do believe that there are both criminal and civil remedies that could be applied in these cases:
Criminal Code Canada:
Although there are no laws in Canada specific to deepfake and nudification technology, we believe that the following sections of the Criminal Code could be used to hold those who sexually weaponize this type of technology criminally accountable:
If the victim is under the age of 18, and their face was morphed into a pornographic picture or video that is made public, there is Case Law where the accused can be arrested, charged and convicted for the possession, creation, and distribution of Child Pornography (R v H(C), 2010 ONCJ 270, R v Butler, 2011 NLTD(G)5, D(R) v S(G), 2011 BCSC 1118)
In 2015 a new law, the non-consensual distribution of an intimate image was created (sec 162.1(1) Criminal Code) “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct” Again, this law has not been tested in Canadian courts specific to a deepfake, but we do think it has a good chance that it would survive a legal challenge.
If the morphed picture/video is being digitally distributed publicly, then the accused could face being arrested and charged with “Indecent Communication” under section 372(1) of the Criminal Code, “Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication”
If the morphed picture/video is being used as a form of blackmail, then the accused could face being arrested and charged with “Extortion” under section 346(1) of the Criminal Code, “Everyone commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
If the morphed picture/video that is released publicly is used to harass a person in such a way to cause them to reasonably fear for their safety, then the accused could face being arrested and charged with “Criminal Harassment” under section 264(1) of the Criminal Code, “No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Civil Law In Canada:
There are also several Civil legal remedies that may apply such as - Defamation, Harassment, Violation of Privacy, and Appropriation of Personality. We are not experts when it comes to Civil Law; thus, why we would recommend connecting with a lawyer who specializes in online infringement or defamation cases. It is also important to understand that Civil remedies can be very expensive, and the victim needs to know the identity of the person creating these deepfakes - often not an easy thing to do.
We here at the White Hatter are seeing an increase in cases where teens are using deepfakes, nudification apps, and morphing technology in two primary ways that we believe parents, caregivers, teens, and schools should be aware of:
1. Inappropriate and egregious jest (most common), or
2. As a weapon to purposely target others.
We have investigated both here at the White Hatter. Both teens and adults need to know that when it comes to sexualized deepfakes and nudification, neither is funny, and both could have significant legal consequences! Parents, please share the contents of this article with your teens, and have a deep discussion about this issue and its real emotional, psychological, physical, social and legal consequences.
Furthermore, as many of the big social media vendors move into the “metaverse”, we do believe that deepfakes, nudification, and gender-based tech violence will be of greater concern, especially to those who identify as female. Given that many of the big tech vendors are based in the United States, we believe that section 230 of the US Communication Decency Act, that many of these vendors use to hide and shield themselves from civil liability, needs to change. Making these vendors legally responsible for removing inappropriate and criminal content on their platforms by third parties is a must in our opinion. If there are no significant court-imposed financial consequences to these vendors, then there is no incentive for them to deal effectively with the issues discussed in this article!
Digital Food For Thought
The White Hatter
(1) Bates, S. (2017). Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors. Feminist Criminology, 12(1), 22–42. doi:10.1177/1557085116654565