Image: Shutterstock
It is so ludicrous it’s hard to believe the ads—real ads but using a fake news story to promote a fraudulent product–appeared in mainstream media in Canada and elsewhere. But it happened. The Canadian Press has an in depth report about the ads that appeared in digital editions of such publications as the Toronto Star and Edmonton Journal claiming that NDP Leader and Member of Parliament Jagmeet Singh had a “fatal accident” while on live TV, inadvertently revealing a secret way of earning revenue during an interview with CTV’s Vassy Kapelos. The “fatal accident” appears to be the revelation of the secret rather than Singh’s demise. He is very alive and kicking. The supposed “accident” was clickbait for a cryptocurrency scam, an easy way of earning money that Singh allegedly knew about but the “authorities”, such as the Bank of Canada, didn’t want the public to have access to. What sheer and utter nonsense.
The doctored image was a clear violation of the copyright of the original broadcast, owned by Bell Media’s CTV. However, it is hard to believe that CTV will bother going after anyone for copyright infringement, although perhaps the perpetrator (no doubt a shell company) could be tracked down through Google, which facilitated the ads. Google, of course, claims that it is not responsible even though the ads violated its policy against impersonation of public figures. And it seems no one at the reputable media outlets where these scams were featured under their byline bothers to check ads like this. It is only after the fact, when they are made to look foolish, that they act to have them removed. They just collect the money from an ad placement firm.
It used to be that if an ad appeared in a major daily newspaper, there was some expectation of a degree of truth in advertising and an assumption that the paper would not allow itself to be a platform for fraudulent promotions. No more is this true, it seems. It’s all pretty distressing. It is also a wonder that such ads work, pulling in gullible people. If they didn’t work, the promoters would not be wasting their money promoting these scams.
Somewhere in the multilayered bureaucracy that comprises Canada, there must be some entity with the authority to try to stop this. The Canadian Anti-Fraud Centre, a body established in 1993 by the RCMP, OPP and Competition Bureau with a mandate to assist “Police of Jurisdiction” with enforcement and prevention efforts, would seem to be the place to start. But who are the Police of Jurisdiction for an online ad campaign that appeared in papers across the country and well as in UK and US outlets? The short answer is “nobody”. This is just one of thousands of such scams. Maybe the best the Anti-Fraud Centre can do is to raise awareness of such activities among the public. So, while it is a violation of copyright law, and no doubt fraud, there are other violations of the law—such as a hijacking of Singh’s image and personality–although in Canada the remedies are not easy to use.
In Canada, there is no general “right of publicity” or “personality right” that protects a person’s image, voice, etc, as exists in some US states. However, according to this law firm website there are publicity rights arising from provincial privacy legislation, in BC, Manitoba, Newfoundland and Saskatchewan, and elsewhere a common law civil remedy available on a limited basis. In common law there is a “common law tort of ‘wrongful appropriation of personality’, sometimes referred to as ‘misappropriation of personality’, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness.” The right is enforced through civil litigation so Mr. Singh would have to bring suit against the shady operators of the crypto scam. That is not going to happen.
There is draft federal legislation in the US that, if passed, would deal with situations like this (should they occur in the United States). The NO-FAKES (Nurture Originals, Foster Art, and Keep Entertainment Safe) Act, 2024, is a bipartisan bill introduced into the US Senate in July of this year, after an earlier discussion draft was floated in 2023. If adopted, it would prevent the “production of a digital replica without consent of the applicable individual or rights holder” through civil law action unless part of a news, public affairs, sports broadcast, documentary, or biographical work. It includes exceptions for parodies, satire, and criticism (which are fair dealing exceptions in Canada and considered fair use in the US). In particular it is designed to protect both entertainment figures and political personalities from having their likenesses either manipulated (so that Taylor Swift didn’t really endorse Donald Trump) or used to endorse products or ideas they don’t support. A companion bill was introduced into the House of Representatives with bipartisan support shortly after. The bills were widely supported by major entertainment companies and unions (SAG-AFTRA) but also AI companies such as OpenAI. Apart from providing a civil remedy, it will require platforms to take down offending images upon notice with financial penalties if they do not comply.
According to one of the Members of Congress who introduced it, the NO FAKES Act will:
- Recognize that every individual has a federal intellectual property right to their own voice and likeness—including an extension of that right for the families of individuals after they pass away;
- Empower individuals to take action against bad actors who knowingly create, post, or profit from unauthorized digital copies of them;
- Protect responsible media platforms from liability if they take down offending materials when they discover them;
- Ensure innovation and free speech are protected; and
- Provide a nationwide solution to a patchwork of state laws and regulations by January 2, 2025.
Many US states have versions of a right of personality law. If passed, the NO FAKES Act will pre-empt any relevant state legislation, unless in force prior to January 2, 2025. The proposed federal legislation creates the new national publicity right as an intellectual property right, which gives it an exemption from the notorious Section 230 immunity in US law that allows platforms to ignore virtually any requirement to regulate content posted on their platforms by users. The application of the Act to the platforms (i.e. a take-down requirement), including potential removal of the Section 230 immunity for hosting digital fakes (when the platform has knowledge, usually through a takedown notice) has brought out the usual Silicon Valley suspects (EFF, Public Knowledge, CCIA etc.) to oppose the legislation. They argue that it impinges on free speech, is too blunt a weapon, and so on. In my view, a major reason for their opposition is that it would require the big internet platforms to actually take some responsibility for the content they profit from disseminating.
The ridiculous Singh “newscast ad” highlights a significant loophole in Canadian law. It is much more than a copyright violation. Even though it would be difficult to track down the perpetrators, why aren’t there stronger legal penalties for such actions, as well as liability for failing to assume responsibility for hosting obvious and known fakes? Why isn’t there an obligation on platforms and media to remove fake content that hijacks the personality of a well-known person? The US is trying to grapple with the problem, although whether the NO FAKES Act will be enacted during the current lame duck session of Congress is doubtful given Silicon Valley’s mobilization against it, plus all the other pressing business that Congress will have to deal with (like funding the government) in the few weeks that remain.
Misappropriation of the image and voice of well-known personalities, and a proliferation of AI generated fakes, can be increasingly expected to flood the internet for both political and commercial gain, sometimes even with subversive intent. The ludicrous nature of the Jagmeet Singh ads attracted immediate attention but next time, the fake content could be more insidious and less easy to spot. With the advent of a US President who is willing to say and do just about anything, how will we know what is fake and what is real? Maybe the NO FAKES Act will eventually pass in the US, and maybe Canada needs something similar.
© Hugh Stephens 2024. All Rights Reserved.