With the rapid development of artificial intelligence (“AI”) and deep synthesis algorithms, "face-swapping", "makeup-swapping" and other applications are becoming widespread and popular, while the risk of infringing the personality rights and interests of natural persons in the application of such AI technology is also receiving increasing attention.
On 20 June 2024, the Beijing Internet Court issued two first-instance judgments on the case of "AI face-swapping" app infringement in Beijing. The court found that the service provider, which used other people's videos to "swap faces" and then created templates, infringed on the personal information rights and interests of others, even though it had entrusted a third-party company to provide "face-swapping" services for profits.
The plaintiffs in this case were short video models. Their images were used without authorization by the defendant, an operator of the AI face-swapping app, to create face-swapping templates for paid use. The plaintiffs claimed that this violated their rights and interests in their portraits and personal information, and sought an apology and damages from the defendant.
The case focuses on: 1) whether the image templates used for AI face-swapping qualify as identifiable portraits; and 2) whether the defendant's integration of a third-party AI face-swapping technology into its app means that the plaintiff's facial information is not processed by the defendant, which could imply that the defendant did not infringe the plaintiffs’ rights and interests in personal information.
The court ruled that although the AI-generated templates replicated the movements, physical appearance and other characteristics of the plaintiffs, the differences in facial features made them unidentifiable to a particular person. Therefore, the court found no infringement of portrait rights.
However, the plaintiffs’ video footage contained personal information such as their facial features, which met the definition of “personal information” under the Personal Information Protection Law of the People’s Republic of China. The defendant’s unauthorized collection and use of this video footage to create face-swapping templates and its technical replacement of the plaintiff's faces constituted the processing of personal information. Although the defendant commissioned a third party to provide the AI face-swapping technology, the defendant decided on the manner and scope of the information processing and should therefore be held liable.
The plaintiffs’ video footage, although publicly available, was clearly marked as not being licensed to any paid software. The defendant’s unauthorized commercial use constituted an infringement of the plaintiffs’ rights and interests. The applicable laws are designed to protect personal information through the right to know and the right to make decisions to prevent leakage and misuse of personal information. The defendant failed to prove that it had obtained the plaintiffs’ consent, and therefore infringed the plaintiffs’ rights and interests in personal information.
This case provides two important insights for app operators in the AI field: 1) entrusting a third party with the processing personal information does not relieve them of their own responsibilities; 2) AI face-swapping service providers are still required to obtain the consent of the original right holder to avoid infringing the rights and interests of personal information even if they have erased the original right holder's facial features in the creation of image templates.
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