In a recent case involving misusing deepfake technology, the New Taipei City District Court entered a judgment (111-Su-Zi No. 2500) against two Taiwanese YouTubers (“Defendants”) on December 8, 2022, finding them liable for damaging other’s reputation, likeness, and sexual autonomy by misappropriating other’s digital facial images through deepfake technology, and subsequently presenting them in porn materials edited and created by the Defendants.
According to the judgment, the Defendants downloaded vast amount of digital images of the targeted influencers on the internet, modified the downloaded images by deepfake image synthesis, applied the modified images to Defendants’ porn materials and then provided such modified porn materials to their paid members. Based on the records, the Defendants earned up to NT$13 millions from July of 2020 to October of 2021.
The Court found the Defendants liable for infringing the plaintiff’s sexual autonomy, reputation, and likeness:
- The applicable law in this case is Article 195 of Civil Code, which provides that if a person has wrongfully damaged the body, health, reputation, liberty, credit, privacy or chastity of another person, or other legal interests of personality of another person in a severe way, the injured another person is entitled to claim a reasonable compensation in money even if such injury is not a purely pecuniary loss.
- The Court determined that, by misappropriating plaintiff’s digital images and applied them to porn video for download, Defendants not only damaged plaintiff’s reputation, but also harmed plaintiff’s sexual autonomy and likeness, which are also protected as “other legal interests of personality” per Article 195 of Civil Code. The Defendants argued that there is no damage to plaintiff’s reputation since it was made clear that the plaintiff’s face in the downloaded videos was faked and would not cause the viewers to link the obscene materials with the plaintiff.
- The Court disagreed, finding that digital content can be exposed to and shared among huge number of different users in very short period of time, and that those who are not familiar with deepfake technology might be misled by such deepfake-modified digital content and thus mistakenly identified the plaintiff or gave the negative opinions to the plaintiff. Moreover, because of the far reaching extent of internet connection and ease of availability of these digital contents, the damage caused by Defendants is thousands of times of the damage caused by traditional type of off-line distribution and is too severe to be repairable.
- In view of the totality of circumstances, including the willfulness of the Defendants, the nature of the technology adopted by the Defendants in creating the infringing content, the severity of damage caused by Defendants’ tortious act, and the prevention of the similar misconducts in the future, the Court determined that the Defendants shall be liable to the plaintiff for damage up to NT$ 1 million.
This case is the first court’s decision on legal dispute where one uses deepfake technology to infringe other’s likeness and reputation, and it is clear that Taiwan courts hold a cautious view toward this new technology and the accompanying legal risks. While technology of deepfake has become more and more popular and available among users, one should be cautious of the underlying legal implications on other’s likeness and reputation when using such technology. Additionally, since the product of this technology is usually made available over the internet, users should bear in mind that even though the actual monetary damage is difficult to prove, a court may consider the misuse of such technology an aggravated factor when evaluating the non-pecuniary compensation for the victim’s mental distress under Article 195 of Civil Code.