What legal loopholes allow for the creation and distribution of deepfakes?

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Legal Loopholes Facilitating Deepfake Creation and Distribution

The proliferation of deepfakes is facilitated by several significant legal and ethical oversights, particularly concerning copyright and existing obscenity laws, which were not designed to address AI-generated synthetic media. These loopholes create a challenging environment for both victims and law enforcement.
AI-Generated Works Lack Copyright Protection

A critical legal vacuum stems from the established principle that works generated solely by artificial intelligence, without substantial human authorship, are not eligible for copyright protection. This was notably affirmed in the US ruling of Thaler v. Perlmutter. This lack of copyright ownership means neither the user who prompts the AI nor the platform hosting the AI tool can be easily held accountable for the creation of the synthetic content, leaving a gap in responsibility.
Outdated Obscenity Laws Offer Limited Recourse

Malaysia's existing legal framework, specifically Sections 292 (obscenity) and 509 (insulting modesty) of the Penal Code, is ill-equipped to handle synthetic pornography. These statutes were drafted under the assumption that illicit imagery depicts real, physical bodies. Consequently, victims whose likenesses are digitally superimposed onto synthetic bodies often find themselves without a clear legal avenue for recourse, as the current laws do not explicitly criminalise the creation or distribution of such fabricated content.
Reactive Measures Under the Communications and Multimedia Act

While Section 233 of the Communications and Multimedia Act (CMA) 1998 does criminalise the transmission of obscene content, its application to deepfakes is largely reactive. This means authorities can only intervene after reputational damage has already occurred and the harmful content has been disseminated. This reactive approach fails to provide a preventative mechanism against the initial creation and spread of non-consensual deepfake pornography.

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What legal loopholes allow for the creation and distribution of deepfakes?

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