Saving face
Anyone whose likeness has been misused may demand the takedown of the offending material and may file a complaint with the NPC.
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Anyone whose likeness has been misused may demand the takedown of the offending material and may file a complaint with the NPC.
Life is often a balancing act. Nowhere is this more apparent than at the intersection of creativity, technology and respect for the rights and privacy of others. Artificial intelligence (AI) has made it remarkably easy to create striking images and videos. But just as easily, it can prejudice real people by using their faces and likenesses without their knowledge or consent.
Recognizing this tension, the National Privacy Commission (NPC) recently issued a public notice reminding creators, platforms and ordinary users that a person’s face and likeness remain protected under the law, even when technology produces the final image.
At the heart of the notice is a simple but important reminder: under the Data Privacy Act of 2012 (DPA), a person’s face and likeness constitute personal information. In certain cases, photographs and videos may even qualify as biometric information because they can directly identify an individual.
Using AI tools to generate an image or video from a real person’s likeness, and thereafter posting or sharing it, constitutes the processing of personal data, regardless of the purpose behind it.
This means that such processing must rest on a lawful basis. Consent is perhaps the most familiar ground, although the DPA recognizes other lawful bases depending on the circumstances.
In the absence of any lawful basis, creating or circulating AI-generated media using the likeness of a real person may constitute unauthorized processing under Section 25 of the DPA, exposing the creator to criminal, civil and administrative liability.
The NPC also stresses a point that is easy to overlook: a fabricated image or video may itself constitute false personal data. When AI-generated content depicts someone doing or saying something he or she never did or said, or being somewhere he or she never was, it misrepresents that person.
Under Section 16(e) of the DPA, a data subject may demand that such false data be blocked, removed or destroyed, and may bring the matter before the NPC if the demand is ignored.
It must be noted, however, that the DPA does not apply to data processing for journalistic, artistic or literary purposes, where the right to freedom of expression may come into play. But that protection extends only as far as reasonably necessary to serve the purpose of the expression.
Whether an AI-generated image or video may be excluded from the DPA therefore depends on the circumstances. Is the image being passed off as real? Is it clearly identified as AI-generated? Was the use of the person’s actual likeness truly necessary to convey the intended message?
These nuances likewise apply to AI-generated media involving public officials, who remain data subjects under the DPA. While their right to privacy must be balanced against the public’s right to information on matters of public concern, a fabricated image or video reveals nothing about their actual conduct or the performance of their official functions.
Their family members who do not hold public office — especially their minor children — remain private individuals entitled to the protection of the law.
Anyone whose likeness has been misused may demand the takedown of the offending material and may file a complaint with the NPC. The Commission, in turn, may investigate and issue appropriate compliance or cease-and-desist orders.
Online platforms are likewise expected to provide accessible mechanisms for reporting such content and to act promptly upon lawful demands.
AI has given creativity powerful new tools. But tools are only as good as the hands that wield them. The law does not stand in the way of innovation. It merely asks that creativity be exercised with dignity and consent, so that technology serves people rather than exploits them.
For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.
