Saving ‘Souls’? How Misuse of Private Information Could Protect Targets of Intrusive Deepfakes

This chapter focuses on Article 8 ECHR-based protections for individual image set out in the English misuse of private information (MPI) tort. It demonstrates how MPI doctrine has the latent potential be incrementally developed and applied so as to protect individuals depicted in intrusive deepfakes. It argues MPI can cover false text-based information, and therefore its extension to false audio-visual depictions is a logical necessity. However the courts must first clarify whether MPI will fully adopt the Continental approach to image. The chapter proceeds to argue that the MPI test would need to evolve if MPI is to remain relevant in the digital age. The flexible, purposive stage 1 Murray test should be developed to include factors that take account of digital cut and paste culture. Legitimate concerns about over-protection as a result of any extension of MPI would need to be addressed by similar adjustments to the stage 2 balancing of Articles 8 & 10. The Axel Springer balancing factors should be supplemented by principles drawn from wider Art 10 jurisprudence so the balancing exercise can account for a wider array of expression by net-users in order to protect artistic and satirical deepfakes.