Outdated laws leave victims open to deepfake abuse: 'Frozen in time'

Malta’s laws have failed to keep pace with the rise of AI-generated deepfakes, leaving victims of digitally created abuse without adequate legal protection, a legal expert warned.

Deepfakes are realistic AI-generated videos, audio recordings or images that convincingly depict people saying or doing things they never did.

“There is no offence at the moment for using a tool to create an entirely new deepfake. The law has not caught up yet, so there is currently no accountability,” Antonio Ghio said during a roundtable discussion organised by the Malta Chamber on deepfake technologies and gender-based violence.

The event brought together stakeholders from business, government, civil society and technical fields to establish an evidence-based platform for dialogue, promote national legislation on deepfakes and encourage coordinated action across sectors.

Ghio said Malta’s legal framework has yet to catch up with this technology. He explained that Article 208E of the Criminal Code, introduced in 2016, makes it an offence punishable by up to five years’ imprisonment to take or disclose private sexual images or videos without the subject’s consent. The provision was modelled on UK legislation.

There is no offence at the moment for using a tool to create an entirely new deepfake. The law has not caught up yet, so there is currently no accountability- Legal expert Antonio Ghio

Maltese courts have since secured convictions involving real images, actual disclosures and provable malicious intent.

However, Ghio said AI-generated deepfakes fall outside the scope of the existing law.

The UK has since expanded its legislation to include “an image, whether made or altered by computer graphics or any other way, which appears to be a photograph”. Malta, by contrast, has retained what he described as its “10-year-old model” and “left it frozen in time”.

Malta must transpose Directive (EU) 2024/1385 on combating violence against women by June 2027. The directive requires all EU member states to criminalise the non-consensual creation and distribution of sexually explicit deepfakes.

“The problem is not the penalty or the resolve of our courts to punish. The problem is the words they are given to apply,” Ghio said.

Malta needs dedicated criminal offence

He argued Malta needs a dedicated criminal offence addressing the public harm caused by deepfakes, rather than relying on laws governing private communications. He also called for preventative measures, greater accountability for online platforms, judicial training and consultation with victim-support organisations before drafting new legislation.

“The stigma of the abuse falls on the woman in the image, not the man who made it,” he said.

In January, Prime Minister Robert Abela said the government was preparing recommendations to address the abusive use of deepfakes. He stressed the importance of the responsible use of artificial intelligence and said the government was reviewing legislation to tackle the use of deepfakes for bullying, blackmail and harassment.

Lorraine Schembri Orland, Malta’s judge at the European Court of Human Rights, told the roundtable that all forms of gender-based violence should be understood as a form of gender discrimination.

“Any form of gender-based violence must be seen through the lens of yet another form of gender discrimination.”

'Violence against women recognised as form of discrimination by Strasbourg court'

Drawing on the court’s case law, she said violence against women had evolved alongside technological change, with digital platforms creating new forms of abuse targeting women and girls.

Schembri Orland said the Strasbourg court has recognised violence against women as a form of discrimination and has treated cyber violence as engaging both the right to privacy and protection from discrimination.

She also called for greater awareness in schools and stronger cooperation among women across Europe to combat digital discrimination.

All forms of gender-based violence should be understood as a form of gender discrimination- Lorraine Schembri Orland, Malta’s judge at the European Court of Human Rights

Disinformation analyst Naja Bentzen, from the European Parliamentary Research Service, presented research on the impact of AI-enabled disinformation on women.

Research published in 2023 found that 99% of people targeted by deepfakes are women and that 98% of such content is non-consensual and sexually explicit. She added that women make up just 31% of the global AI workforce.

The roundtable discussion forms part of the Malta Chamber’s initiative funded by the Commission on Gender-Based Violence and Domestic Violence through the Together We Empower – A Future without Violence programme.