Protecting your digital self: Could Denmark's likeness law work in Australia?

Academics are divided over whether Australia should follow Denmark’s lead in giving individuals legal control over their likeness.

The Danish government aims to protect citizens from deepfakes and digital identity theft by granting copyright over their image, facial features and voice.

The proposed law would ban the non-consensual sharing of AI-generated imitations and give individuals the right to demand their removal from social media platforms.

It comes as governments around the world grapple with the ethical and legal challenges posed by rapidly advancing technologies.

Experts say Denmark’s bill could set a global precedent but remain split on whether similar laws in Australia would protect personal likenesses without stifling creative freedom.

Sarah Hook, a senior law lecturer at UTS, said granting a property right over a person’s appearance “may be going a bit far.”

“Making it a copyright issue rather than a privacy issue means it can be assigned, and likely terms and conditions will now incorporate ownership rights over content,” she told AdNews. 

“Copyright infringement requires action by the individual… that often means only people with money and access to the courts are likely to benefit.”

Hook said there are some “troubling issues” with AI-generated deepfakes and privacy concerns over facial recognition technologies. 

However, she noted that Australia already has laws covering deepfake sexual material, misrepresentation, false endorsement and defamation. 

She also raised concerns about how voice will be legally protected, describing it as a “very difficult thing” to define and own. 

“We need to be careful we don’t overreach and kill freedom of expression,” she said. 

Hook said that laws governing these issues might better sit within publicity rights frameworks, which exist in some overseas jurisdictions, rather than under copyright.

She added that the government’s decision to scrap its proposed misinformation bill means significant work will be needed to bring the issue back onto the agenda.

But if Australia introduced a law similar to Denmark’s, it could give individuals more control over how their face and voice are used. 

“It is likely actors, models and celebrities will then see contracts which require them to assign such rights which may be problematic,” she said. 

“Moral rights may offer some protection to guard against uses that damage their reputation.”  

Kane Koh, a marketing lecturer at RMIT University, said AI-generated models which feature hyper-realistic figures raise unresolved questions around ownership and consent.

“AI must learn from something: someone’s face, voice, posture or movement,” he said. 

“No AI is created in a vacuum, someone’s likeness always forms the foundation.”

Koh believes Australia should consider similar laws to restore the trust, privacy and autonomy undermined by emerging technologies.

“I do believe such legislation is necessary, especially given how difficult it has become to regulate virtually anything within digital environments,” he said. 

“The boundaries between real and synthetic content are blurring rapidly, making it difficult for individuals to maintain control over how their likeness is used.”

Koh said Denmark’s new legislation will likely set a precedent for other countries, particularly those grappling with the ethical and legal challenges of AI. 

“Given how seriously Australia treats consumer protection… it’s plausible that similar discussions will follow here,” he said. 

“It’ll be interesting to see how this will be supported by institutions such as the ACCC and the OAIC given their interests in privacy, data use and advertising standards.

“If Australia were to adopt legislation granting individuals control over their likeness, it could create a range of legal obligations for advertisers, marketers, and content creators.

“Some might include obtaining explicit consent before using someone’s likeness, maintaining transparent documentation of usage rights and model training data, and providing clear disclosures when AI-generated likenesses are used in campaigns.”

Koh said barriers like stricter privacy settings and potential copyright controls could disrupt how marketers access and use consumer data.

“If individuals were granted copyright-like control over their likeness, the immediate concern for marketers would be whether and how they can access and use this information,” he said.  

“Marketers would need to manage consumer data with exceptional care, especially given widespread public concern over data misuse and the growing number of global data breaches.”

Lukasz Swiatek, an arts and media lecturer at UNSW, said tech that “chips away at social cohesion” will only continue to grow. 

“It’s incredibly important that governments everywhere – and, by extension, laws – keep up with new technologies and the problems that they’re causing,” he told AdNews. 

“Digital landscapes can’t be left unregulated.” 

Swiatek said a law like Denmark’s would help prevent the unethical use of digital imitations of people and their identities in advertising.

“Advertising professionals have an obligation, along with other communication practitioners, to complete their promotional activities ethically and, in the age of AI, part of that obligation extends to ensuring that human beings aren’t harmed during any stage of an ad campaign’s development,” he said. 

“If, in the development of an ad campaign, a call were made by someone to use a deepfake, an advertising professional would do well to point out the problems with deepfakes and push for a more ethical alternative, ideally in the form of hiring a human being.”

Swiatek said similar laws in Australia could also reinforce national values around ethics and identity.

“The biggest benefit of similar protections here would probably be the positive impact of giving advertising professionals, as well as all sorts of organisations involved in advertising, a clear guideline for not using AI technology to provide digital imitations of people’s identities in advertising content,” he said. 

“The protections would send the message that Australia values and safeguards human beings, along with all aspects of their identity and encourages promotional activities to be undertaken ethically.”

Swiatek believes the government may consider similar protections here, given its willingness to implement world-leading social media laws. 

“The likelihood would grow, of course, if other countries, especially in Europe, ended up taking a leaf out of Denmark’s book too,” he said. 

“The rapid development of AI, and the growing sophistication of deepfakes, make it so important for governments around the world to implement effective safeguards in protecting individuals and their identities.”