WITH the advent of the Fourth Industrial Revolution, artificial intelligence (AI) technologies have increased in ample measure.

The benefits of this proliferation in AI technologies are manifold, and well-documented. Still, for all their utility, AI technologies have also created complex problems for which there are neither simple solutions nor quick fixes. This is especially true in relation to the emergence of deepfake AI technologies — often colloquially referred to as deepfakes — which, whilst offering important benefits “…including accessibility, education, forensics, and artistic expression”, can have significant social, financial, and even political implications when misused (Amanda Lawson, A Look at Global Deepfake Regulation Approaches (April 24, 2023), Responsible Artificial Intelligence Institute:).

Deepfakes have been described as a “type of artificial intelligence used to create convincing images, audio and video hoaxes”. Deepfakes are often used to transform “existing source content” in which one person is swapped for another, as well as to create original content where someone is represented as doing or saying something that they neither said nor did. “The greatest danger posed by deepfakes is their ability to spread false information that appears to come from trusted sources.” (Nick Barney,
What is deepfake technology? in TechTarget). Consequently, when misused, deepfakes make it difficult to distinguish between real and fake media, thereby eroding trust in digital content and undermining the integrity of personal and public data.

More recently, a particularly disturbing trend involving the misuse of deepfakes has emerged. This trend has seen the images or likenesses of celebrities, and even non-celebrities, being effectively superimposed on the bodies of pornographic actors in adult films. Quite alarmingly, there has been a marked profusion of non-consensual “deepfake porn”, as it has been informally termed, in the age of AI “…with deepfake creators taking paid requests for porn featuring a person of the buyer’s choice and a plethora of fake not-safe-for-work videos floating around sites dedicated to deepfakes.” (Hailey Reissman, What is deepfake porn and why is it thriving in the age of AI?’ in Penn Today, July 25, 2023)

Deepfakes and the Right of Publicity

The right of publicity is “an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity — such as nickname, pseudonym, voice, signature, likeness, or photograph — for commercial benefit”.

In the United States of America, “a majority of states…recognise the right of publicity by statute and/or case law…” “Outside the United States, rights analogous to the right of publicity are sometimes recognised as ‘personality rights’, ‘rights of persona’, or other similar terminology, and the source and scope of those rights vary.” (Right of Publicity, according to The International Trademark Association,)

In the context of deepfakes, the right of publicity is violated when deepfakes exploit an individual’s image or likeness without their consent, and especially in circumstances where the individual’s image or likeness is used for commercial gain. The right to publicity can also be violated when deepfakes feature the image or likeness of a celebrity, without their consent, since the use of deepfakes in this context can infringe that celebrity’s right to control the manner in which their image or likeness is commercially exploited.

Tackling deepfake misuse in Jamaica

Due to the multidimensional nature, scope, and impact of deepfakes, a unidimensional approach which relies solely on legal or technological interventions, for example, will not be efficacious. As such, effectively tackling the problem in the Jamaican context will require a multi-pronged interventionist strategy that embraces technological and legal measures, research, and public education as its central pillars, and is also sensitive to the social, cultural, and economic environment in which it is to be executed.

From a technological standpoint, any multidimensional interventionist strategy aimed at tackling the misuse of deepfakes in Jamaica should incorporate the use of deepfake detection tools which leverage AI, and machine learning algorithms that are being used to detect deepfakes by analysing subtle inconsistencies in digital media including facial movements, lighting discrepancies, or audio-visual mismatches. Blockchain technology should also be utilised to verify the authenticity of digital content by providing a tamper-proof record of its creation and modification history, which will make it easier to distinguish real content from deepfakes (Achhardeep Kaur, Azadeh Noori Hoshyar, Vidya Saikrishna and Selena Firmin, Deepfake video detection: challenges and opportunities’ (2024) 57:159 Artificial Intelligence Review).

In addition, any such strategy must also recognise the necessity of developing and innovating the law to address the issue of deepfake misuse in Jamaica. The importance of what I am calling extra-jurisdictional learnings cannot be overstated in this context. In the United States of America there is currently no legislation specifically treating with deepfakes at the federal level, however, various states have enacted specific legislation to combat deepfakes, particularly in the context of political elections and non-consensual “deepfake porn”. For example, in 2019 the state of California passed into law assembly Bill AB 602, which addresses the issue of deepfakes in the context of pornography by proscribing the creation and distribution of non-consensual deepfake porn (K.C. Halm, Ambika Kumar, Jonathan Segal and Caesar Kalinowski IV,
Two New California Laws Tackle Deepfake Videos in Politics and Porn’ (February 28, 2020), Davis Wright Tremaine LLP: ). In Texas, it is illegal to create or distribute deepfakes intended to harm political candidates or influence elections (Monica Madden,
How AI could impact misinformation in elections (February 4, 2024, updated February 5, 2024). Finally, some three years ago, the state of New York also passed into law senate Bill 2019-S5959D which enshrines the right of publicity, and imposes fines and even jail time for the unlawful dissemination or publication of a sexually explicit depiction of an individual (The New York State Senate Schedule, Senate Bill S5959D).

The foregoing extra-jurisdictional learnings on the matter of deepfake regulation should be noted and carefully considered by the relevant stakeholders when deciding the best way forward for Jamaica in its fight against deepfake misuse, which will only become more prevalent as AI technologies become more sophisticated. Moreover, emphasis should be placed by the relevant stakeholders on fostering local, regional, and international collaboration and cooperation on the issue, given the globalised nature of the world and the imperative of establishing effective frameworks to tackle the misuse of deepfakes worldwide.

The deployment of culturally sensitive public awareness campaigns and media literacy programmes aimed at educating the Jamaican public about deepfakes, and the misinformation and other dangers that they can create, should also be prioritised by the relevant stakeholders. This move would empower the Jamaican public to become more discerning consumers of digital content by enabling them to critically evaluate the authenticity of digital content.

Finally, commissioning specific and culturally relevant research into new methods for detecting and mitigating the impacts of deepfake misuse (as many developed countries have done or are now in the process of doing) is also crucial as this research will inform the substance, form, and logistical execution of any multidimensional interventionist strategy aimed at tackling the misuse of deepfakes in Jamaica.

Amanda Janell DeAmor Quest is an attorney-at-law. She can be reached at amandajdquest@gmail.com.