Give deepfake victims own legal recourse, says lawyer

I was interviewed by Free Malaysia Today to give my views about private rights to initiate legal action for misuse of personal data. Here is an excerpt from the article-

PETALING JAYA: A lawyer has called on the government to tighten data privacy laws to allow individuals to seek legal recourse for misuse of their image, voice or likeness, particularly in cases involving deepfakes.
Deepfakes are AI-generated media that use advanced digital manipulation to convincingly depict a person as saying or doing something they never actually said or did.

Foong Cheng Leong, deputy chair of the Bar Council’s intellectual property committee, said that under the Personal Data Protection Act 2010 (PDPA), data subjects are dependent on the commissioner to initiate action on their behalf.

“This may take time. The PDPA should allow data subjects to take private action, including to obtain orders (against platform providers or advertisers) for an injunction or damages as well as to take down the content involved,” he told FMT.

He said Section 233 of the Communications and Multimedia Act 1998 and certain provisions in the Penal Code are wide enough to enable criminal proceedings to be brought over the misuse of deepfakes.

However, victims have difficulty seeking civil redress as there is no right to private action under the PDPA.

“But damages may be sought if other causes of action like invasion of privacy (involving the use of very private information) or copyright infringement (such as movies or photographs) are applicable,” said Foong.

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Last month, it was reported that Denmark was working on legislation to grant individuals legal rights over their body, facial features and voice in a bid to clamp down on the creation and dissemination of deepfakes.

The proposed bill would also give Danish people the right to demand that online platforms remove content shared without consent.

Asked if Malaysia should follow suit, Foong explained that copyright law generally protected the expression of an idea, such as artistic or literary works but not a person’s features, which fell under personal data.

“This (proposal) flips the whole fundamental understanding of what is copyright. The entire copyright law will need to be changed to cater to a person’s features being protected by copyright. It would cause more chaos in the law rather than giving an advantage,” he said.