New Zealand Law Society - Regulating fake news and video

Regulating fake news and video

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New technologies offer exciting new channels for effective communication – but their misuse can pose threats to individual rights, and to wider society.

The Law Foundation, through its Information Law and Policy Project, is backing two projects that are looking at how to regulate harmful use of two fast-moving technology areas: video and social media.

Fake video

Fake video is everywhere – New Zealand’s highly successful digital effects industry is built on it. The potential creative uses can be jaw-dropping: for example, it enabled actor Peter Cushing to reprise his 1977 role as Grand Moff Tarkin in Star Wars: Rogue One, more than 20 years after his death.

But fake audio-visual information can also cause harm by manipulating people’s words and images without permission. Leaders like Theresa May, Vladimir Putin and Donald Trump are depicted giving speeches they never made. Countless videos show celebrities performing in pornographic films they were not part of.

Researchers Tom Barraclough and Curtis Barnes are studying the ethical, legal and social questions arising from image and sound synthesis and manipulation. Their project, Perception Inception, will define this rapidly-emerging area of technology law and produce a report to guide image creators, consumers and policy-makers.

Mr Barraclough says many of the issues raised by fake video are likely to be covered already in legislation around privacy, censorship, and harmful digital communications.

“We already have harassment laws, which may cover things like the use of fake video of people in compromising positions. I think there will be gaps in the law. There will be a mix of human, legal and technical responses – there won’t be a silver bullet,” he says.

Policy makers worldwide are looking at fake video regulation, and there have been attempts to legislate in New York and the US Senate – but, as Mr Barraclough says, these efforts have foundered around defining the problem.

“Not all fake videos are harmful. The US legislation is about direct intervention – according to the Motion Picture Association of America, it would risk banning future biopics of historical figures. A spectrum of responses is needed.”

Mr Barraclough and Mr Barnes are keen to involve New Zealand’s visual effects industry in their research: “We are world leaders in this industry built on fake videos,” Tom Barraclough says. “It’s a new, exciting area, and we have an opportunity to lead this internationally.”

The first research draft will be circulated for comment in April before the report is finalised in May, though Mr Barraclough expects it to lead into other specialised projects. He encourages anyone with an interest to make contact via their website.

Fake news

In terms of democratic values, social media is a two-edged sword. Because it gives people direct access to each other, it can give disempowered people a voice, as seen for example in the ‘Arab Spring’ uprising. But the impact of fake news, hosted by virtually unregulated platforms like Facebook, shows how social media has been used to disrupt democracy.

A team led by researcher Marianne Elliott has been exploring the opportunities, risks and threats posed to New Zealand’s democracy by digital technology, in particular by social media and the digital platform monopolies.

She says there is a long history of regulating media to promote accuracy and fairness, and of constraining free speech to protect human rights. Digital media should meet the same standards as traditional forms, but it is much more difficult to regulate. Facebook has claimed to the Privacy Commissioner that it is not subject to New Zealand law. There are three major challenges: the speed of digital publishing, the absence of self-regulation as practised by traditional media, and the global nature of the problem.

“Any functional regulatory framework has to be a global one,” she says. “It won’t work as a whole series of national frameworks. Reaching a consensus on a global framework might mean some compromise – what we can all agree on might be less than what we in New Zealand would see as ideal.”

While opinions differ, many of the experts interviewed by Ms Elliott say that, as a digitally-advanced nation, New Zealand is well-placed to help shape a global consensus on digital regulation. Her research findings, the result of a year’s work, are expected to be published in late March.

Lynda Hagen is Executive Director of the New Zealand Law Foundation.

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