The Government takes the first step to include the deepfakes in the catalog of crimes against honor. The Council of Ministers will approve this Tuesday in the first round the draft law on the right to honor and to personal and family privacy and to one’s own image, which aims, among other things, to put a stop to the manipulation of images and voices that is gaining ground thanks to the application of Artificial Intelligence. The new norm, which has organic status and, therefore, requires an absolute majority of Congress to be approved, will consider illegitimate the use or dissemination of the image or voice of a person that has been created, simulated or manipulated technologically to give it an extremely realistic appearance, although it recognizes limits such as creative, satirical, artistic or fictional purposes. Creators will have to make public that the content has been manipulated.
The regulations are part of the Action Plan for Democracy to which Pedro Sánchez committed in 2024 and represents an expansion with respect to the draft Organic Law for the protection of minors in digital environments, which already included the classification as crimes in the Penal Code. deepfakes (ultrafakes using a person’s face or body without their consent) of sexual content and grooming, deceiving a minor by using a fictitious identity to resemble his or her age. Manipulations with AI of any kind will now be considered an interference in the right to honor, according to the law developed by the Ministries of the Presidency, Justice and Relations with the Courts and of Youth and Children headed by Félix Bolaños and Sira Rego, respectively.
The draft also aims to reinforce the figure of consent in the use and dissemination of one’s own image. The debate has intensified with the rise of social networks, since in most cases digital platforms appropriate user content to be able to use it for different purposes. “The right to honor, to personal and family privacy and to one’s own image is inalienable, inalienable and imprescriptible. The waiver of the protection provided for in this law will be void, without prejudice to the cases of authorization or consent referred to in this law,” establishes article 2 of the law.
Bringing social media jurisprudence into law
The Government’s intention is that the transfer of content, such as images on social networks, does not imply absolute freedom for the owners of digital platforms, but will be limited to consent to limit inappropriate or abusive uses, explain government sources. “The civil protection of honor, privacy and one’s own image will be delimited by laws and social customs taking into account the area that, through their own actions, each person maintains reserved for themselves or their family,” the text states.
“The existence of illegitimate interference in the protected area will not be appreciated when it is expressly authorized by Law or when the right holder has given his express consent for this purpose and the action has not exceeded the limits of the consent given,” states the regulations, which add that the consent “shall be revocable at any time, but, where appropriate, damages and losses caused must be compensated, including justified expectations.”
The Government intends to legislate the jurisprudence of the courts. “Now the courts stated that you can give consent for your image to be used for a certain purpose. That only enables whoever you authorize to do that, but not beyond,” explains a person familiar with the regulations. A clear example: if a user uploads an image to Instagram, a media outlet could not use it unless the user had expressly authorized it in the conditions of use. “It depends on what you authorize each social network,” explains that source.
Minors will only be able to give consent from the age of 16, which is when it is considered that sufficient maturity has been reached. Spain is one of the countries that is putting pressure within the EU to set a minimum age for minors to access social networks. Currently, the age in Spain is 14 years, but the Government proposed raising it to 16 and has also promoted a verification system to control access to dangerous content, such as porn.
In order to protect honor and privacy, the Government proposes strengthening the protection of content that has commercial or advertising purposes as well as setting limits related to the rise of the genre of true crime (series and movies based on crimes). If the offender reveals facts related to the crime that cause harm to the victim, it will be considered interference, even if he or she has not received a financial benefit. The use of one’s own image or voice, original or modified, simulated or manipulated, for advertising, commercial or similar purposes may also be prohibited in the will.
Compensation for interference with the right to honor or privacy will take into account the patrimonial and moral damage “taking into account the circumstances of the case and the severity of the injury” depending on whether it violates one or more fundamental rights, the severity of the expressions used, the acts or previous exposure of the affected person, the recidivism of the offender, the impact in terms of audience, the social repercussions it causes, the extension over time, the damage derived or the circumstances of the person. aggrieved “In any case, the compensation may not be symbolic in nature,” establishes the text, which requires the publication of the sentence in the Official State Gazette in the event that the affected person claims it.
Right of rectification against influencers
The Council of Ministers will also approve in the second round the bill that regulates the right to rectification, which grants any person concerned by information the power to rectify that information with their version of the facts if they consider them inaccurate and that their dissemination may affect them. Until now, these regulations apply to traditional media and the new regulations would extend the obligations to influencers.
Regarding the first round in the Council of Ministers of this regulation, responsibility is shifted to the communicators. The previous text obliged platforms, such as YouTube or TikTok, to enable channels for this type of claims. Now they will be their own influencers (those who have more than 100,000 followers on one platform or more than 200,000 in the sum of several) who must publicly inform what the channels are to exercise the right of rectification against them.
The digital platforms will have to publish the rectification “in a visible place together with the original information and, in addition, including following it an express notice that it is the exercise of the right of rectification”: “Likewise, in the publication of the original information, an explanatory notice will be included, in a visible place, showing that said information has been rectified by the affected person. Said notice will incorporate a link to the text of the rectification. When it is not possible to publish the rectification together with the original information, or include the notice or link referred to in the previous paragraphs, it will be disseminated in another appropriate way that allows its knowledge with a similar audience and relevance.
In the case of digital media, “the rectification must be published through a new link to the original information with relevance similar to that with which the information being rectified was published or disseminated. Likewise, in this same case, the digital media will publish in their digital files an explanatory notice that shows that the original news has been rectified by the affected person. Said notice must appear in a visible place together with the original information and will include a link to the text of the rectification.”
“The judicial rectification procedure is simplified and adapted to guarantee greater agility and adaptation to digital environments,” explain government sources. The affected party may send the request for rectification within a period of ten days from the publication of the information and the media will have to publish it “within three calendar days following its receipt, with relevance similar to that in which the information being rectified was published or disseminated, without comments or apostilles.” If this procedure does not occur, the affected party may file a claim before the courts within a period of seven days and the law establishes a period of another seven days for holding the trial.
Source: www.eldiario.es
