Is the law keeping pace with technology? Protecting children’s image in the age of AI

The legal system for the protection of minors in the age of artificial intelligence

The right of a child to the protection of his or her image is a fundamental aspect of his or her personal rights, confirmed by legal acts such as the UN Convention on the Rights of the Child and European data protection regulations, including RODO.

It cannot be said that a tool based on artificial intelligence is recent, as it has existed for many years – instead, public awareness has increased due to its unprecedented development.

On the other hand, the rapid development of artificial intelligence technology and deepfake tools introduces new challenges in terms of image protection, especially for children, who are particularly vulnerable to their image being used illegally.

Deepfake technology

There are five types of manipulation using deepfake technology, which differ in the process of creating the targeted content and the components needed to apply a particular method.

The most commonly used manipulation is attribute manipulation, known more widely simply as face retouching.

It involves modifying an image by adding, removing or changing certain attributes, e.g. glasses, freckles, eye colour and, in more advanced designs, even skin colour or gender.

The technique was popularised through the mobile application ‘FaceApp’, which allowed users to create a visualisation of their own face in specific hairstyles, make-up or create a model of their face at a specific age.^[1]

This technique can be used to create material that can be used for blackmail, cyberbullying or the creation of criminal content

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A lack of awareness of the potential consequences can expose children to irreparable harm.

It is crucial in this case to inform parents about the dangers of sharing images and videos of children online.

Children’s right to their own

image The image of a child is protected by both civil and criminal law.

In Poland, Article 81 of the Act on Copyright and Related Rights clearly indicates that the dissemination of an image requires the consent of the person depicted in the photograph or, in the case of children, their legal representatives.

In addition, the protection of a child’s image is in line with the general principles of personal data protection set out in the RODO, which recognises children as persons in need of special protection – as we read further in recital 38 of the RODO.

The welfare of children is also detailed in the not-so-distantly enacted AI Act, where a reference to the UN Convention on the Rights of the Child appears in the recitals.

This lays the foundations for future regulations focusing on providing minors with effective protection against threats existing in the digital space.

However, Polish law lacks specific regulations on deepfake technology.

However, the use of deepfake for purposes that violate children’s rights may be sanctioned under the provisions of the Criminal Code, such as Article 190a (harassment) or Article 202 (dissemination of pornographic content).

Countering the negative consequences of technological developments

In the face of the rapid development of technologies such as deepfake, education seems to be the most effective way to protect against its negative consequences.

The law, although necessary, often fails to keep up with the rapid pace of technological change, making it difficult to introduce effective regulations.

Numerous studies show that the preventive function of the law is realised by the inevitability of enforcing penalties rather than the severity of regulation, which, in the case of deepfake technology, cannot be guaranteed at this stage, so building social resilience against manipulation is crucial.

Protecting children’s images in an era of rapid development of artificial intelligence requires a comprehensive approach.

The introduction of appropriate regulation, education of the public and the development of preventive tools are key to ensuring that children’s rights are not violated in the context of deepfake exploitation.

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[1] Z. AKHTAR, Deepfakes Generation and Detection: A Short Survey, Journal of Imaging 2023, p. 18.