Deepfake can be defined as the production of fake media content using deep learning technology. For example, realistic changes made to an image such as completely replacing the face of a person in an original media content (such as a photo or video) with the face of another person (making the face of person B compatible with the body instead of the face of person A), changing the facial expression of the person in the original content (changing the facial expression of A from a smile to an angry face), or recreating a person who does not actually exist as if he or she existed (creating a hypothetical person C) are deepfakes. It should be noted that these changes do not have to be only related to the face. Changes to the person’s entire body and body parts in a way that can be associated with a person are also considered deepfakes. In addition, it is possible to talk about deepfakes in cases where voice changes are made, for example, when words that have never been spoken are realistically changed as if that person were saying them.
While deepfakes can be useful depending on the purpose of use, they also carry the risk of violating legal values due to their fake content. In this context, it is possible for different criminal law responsibilities to arise at various stages, starting from the production of programs developed to produce deepfake content to the use of deepfake content. Therefore, the types of crimes that may come to the fore most in the event of the production and use of deepfake content will be given below.
- Prohibited Devices and Programs
Creating, manufacturing, importing, shipping, transporting and accepting or storing, selling, offering for sale, purchasing, giving to others or possessing a computer program for the purpose of committing cybercrimes or other crimes that can be committed by using information systems as a tool gives rise to the crime titled prohibited devices and programs in TCK Article 245/A. For example, the program called “DeepNude” enables the images of clothed people in photographs to be rendered naked using artificial intelligence. However, in order for the crime in TCK Article 245/A regarding prohibited devices and programs to occur, it must be manufactured, imported, shipped, transported and accepted or stored, sold, offering for sale, purchasing, giving to others or possessed in order to commit cybercrimes or other crimes that can be committed by using information systems as a tool. For example, since the qualified form of the crime of fraud committed by using information systems as a tool (TCK Art. 158/1-f) is one of the “other crimes that can be committed by using information systems as a tool”, having a program that produces deepfake content in order to commit the crime of fraud by using information systems as a tool constitutes the crime of possessing a prohibited program stipulated in TCK Art. 245/A. In clearer terms, since the purpose element is included, it is not possible to say that this crime occurs solely because every program produced for the creation of deepfake content produces deepfake content.
- Slander, Fabrication of Crimes and Blackmail
Attributing an unlawful act to a person, even though he/she knows that he/she did not commit it, in order to initiate an investigation and prosecution or to impose an administrative sanction, constitutes the crime of slander (TCK Art. 267/1). The commission of the crime of slander in the context of deepfake is in question in terms of TCK Article 267/2. In other words, by producing and using deepfake content, it is possible to fabricate material works and evidence of the act and to slander (TCK Art. 267/2). For example, it is possible to manipulate the video by replacing the face of A, who committed the crime of intentional murder, with B in the camera recordings.
Similarly, within the scope of the crime of fabricating a crime; it is possible to fabricate evidence or signs of a crime that was not actually committed in a way that will enable an investigation with deepfake (TCK Art. 271/1). For example, although the camera recording includes images of doctor A treating a patient, the act he committed may be manipulated in the video in a way that will constitute the crime of intentional murder.
In the crime of blackmail included in TCK Art. 107/2, threatening to disclose or impute matters that will harm the honor or reputation of a person in order to benefit himself or someone else is punished. For example, threatening that a person’s images will be used in a deepfake content and that facts that can be believed to be true will be attributed to the person that will harm his/her honor or reputation will constitute this crime.
- The Crime of Obscenity
With deepfake technology, photos and videos obtained from people who are not actually in obscene media content can be used to make it seem like these people are in obscene media content. For example, it is seen that data is collected from non-sexual images of actress Emma Watson, who became famous in the Harry Potter movies, and fake content videos are prepared by replacing the heads of people in the current sexual videos with the actress’s head.
The publication of the content of the created sexual deepfake media will constitute the crime of obscenity (TCK Art. 226). It is seen that the most frequent use of deepfake is the creation of sexual media content. In fact, according to a report published by an initiative called Deeptrace in July 2019, 14,678 deepfake content was found on the internet between January and July 2019, and 96% of these were sexual (pornographic) media. It should be noted that if the body of a person in an obscene content created for adults for commercial purposes is combined with the face of a person who is not actually in that photo or video using deepfake technology, the crime of obscenity will not occur.
- Crimes Committed by Violating Moral, Financial or Related Rights Regarding Intellectual and Artistic Works
Crimes committed by violating moral, financial or related rights regarding intellectual and artistic works are regulated in Article 71 of the Law on Intellectual and Artistic Works No. 5846 (FSEK). For example, changing a work, performance, phonogram or production from any kind of intellectual and artistic product that bears the owner’s identity and is considered a work of science, literature, music, fine arts or cinema (FSEK Art. 1/B-a) without the written permission of the rightful owners constitutes this crime (FSEK Art. 71/1-1). For example, it is possible to change a scene in a movie using deepfake technology. If this change is made without the written permission of the rightful owners, this crime will occur.
- Fraud Crime
In terms of fraud crimes originating from deepfake, the qualified form of fraud crime committed by using information systems as a tool (TCK Art. 158/1-f) should be examined. In order for fraud crime to be committed by using information systems as a tool, the information system must be an element of deception and used as a tool to strengthen deception, thus allowing the addressee to be deceived more easily. In this context, we should state that deepfake content, i.e. audio, images and videos created by using deepfake technology, is not an information system itself. If the information system used for the purpose of producing deepfake content is used as a tool in committing the crime of fraud, it should be accepted that the crime of fraud has been committed by using information systems as a tool (TCK Art. 158/1-f).
[1] This article has been prepared by benefiting from: Babayiğit, B. (2021). DEEPFAKE’İN CEZA HUKUKU BAKIMINDAN DEĞERLENDİRİLMESİ VE DE LEGE FERENDA ÖNERİLER. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 25(4), 655-703. https://doi.org/10.34246/ahbvuhfd.1018877