Focusing on elections, we wish to highlight here that Parliament is forward-thinking in the fact that in 2014, they introduced a provision to the Elections Act directed to the impersonation of certain kinds of people in the election process. While such provisions are not specifically targeted at deepfake videos, such videos may very well fall within the scope of this section.
In addition, there have been examples in our Canadian case law where social media platforms have been compelled through what courts call Norwich orders to assist in the investigation of a crime committed on that social media platform. For example, a social media platform may be compelled by a court to reveal the identities of anonymous users utilizing the services of that social media platform. That is to say that legal mechanisms already exist and, in our experience, law-abiding third parties subject to such orders generally comply with the terms thereof.
There is also room for our courts to expand on common law torts and for governments to codify new ones.
In general, laws exist in common law and statute form. It is important not to lose sight of the fact that governments have the ability to create law; that is, governments are free to come up with laws and pass them into force. Such laws will be upheld, assuming that they comply with certain criteria. Even if they do not necessarily comply with those criteria, there are certain override provisions that are available.
An example of codification of torts is British Columbia's Privacy Act, which essentially writes out in statute what the cause of action of appropriation of personality is.
Today we are flagging two other torts for discussion: unjust enrichment and the tort of false light.
With regard to unjust enrichment, such tort has generally been upheld in cases involving economic loss suffered by the claimant. However, it is reasonable to argue that the concept of losses should be expanded to cover other forms of losses that may not be quantifiable in dollars and cents.
Regarding the tort of false light, such tort exists in some states of the United States. Canada, however, does not recognize this tort just yet. However, the impact of deepfake videos may cause Canadian courts to rethink their position about the tort of false light. Even if this tort of false light does not exist in common law, it is very well within the power of the provincial government to enact the tort into statutory code, thereby creating its existence via statutory form.