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The current
state of AI-driven content generation technologies has sparked intense debates
not only in terms of freedom of expression and personality rights but also
within the field of intellectual property law. In this context, deepfake
technology, in particular, poses a significant risk by creating realistic
digital replicas of individuals without their consent, thereby potentially
infringing upon both the right to privacy and original works and performances
that may be subject to copyright protection.
In recent
years, with the advancement of artificial intelligence technologies, there has
been a notable increase in “deepfake” content, where realistic digital copies
of individuals’ voices, faces, and body movements are produced. Deepfake
represents a new generation of digital manipulation that threatens not only
personality rights but also intellectual property rights. In response to these
developments, various countries have begun preparing protective regulations
against deepfake.
In
particular, in Denmark, a draft law (“Draft Law”) was made available for
public consultation and expert opinion on 07 July 2025. The Draft Law aims to
strengthen individuals’ control over their digital likenesses by protecting
personal rights under a form of “personal copyright.”[1]
With this approach, Denmark has taken pioneering steps—unlike other European
countries—towards including deepfake content within the scope of copyright law
rather than outright banning it. If approved by parliament in the fall of 2025,
the Draft Law is expected to enter into force by late 2025 or early 2026.[2]
The Danish Example and the Draft Law
Initially
announced on 26 June 2025 by Denmark’s Minister of Culture, Jacob Engel
Schmidt, and subsequently made available for public and expert consultation on
7 July 2025, the Draft Law prohibits the digital imitation of individuals’
personal and physical characteristics without their consent. Article §73a of
the Draft Law stipulates: “It is prohibited to digitally reproduce, in a
realistic manner, a person’s distinctive personal characteristics—such as their
face, voice, behavior, or gestures—without that person’s consent.” The
article further specifies that this protection shall continue for 50 years
following the individual’s death.
This Draft
Law seeks to protect a person’s physical appearance and voice as a form of
property, thereby creating a unique intersection between personal data
protection and intellectual property rights.
In the
Danish Deepfake Draft Law, deepfake is defined as a digitally created
representation of a person’s appearance, voice, or likeness that may mislead
observers. The definition of “platform” is also set out broadly as any online
service, website, or application hosting user-generated content.
Accordingly,
various obligations are imposed on platforms. They are required to establish a
mechanism to notify users within 48 hours upon detecting unauthorized deepfake
content involving imitation of voices and faces (§100a). Furthermore, platforms
must retain records of such notifications and actions for a period of two
years. They are also required to provide a reference number and an explanation
within five days for any deleted content.
The Draft
Law does not prohibit the production of deepfake content per se but conditions
its publication on the explicit consent of the individuals concerned, granting
individuals the right to request the removal of such content. In cases where
removal is requested but not carried out, sanctions against platforms are
envisaged.[3] In
this respect, as the Draft Law does not directly criminalize deepfake
production, it can be considered to have a liberal structure. Indeed, the Draft
Law explicitly excludes from prohibition content created for purposes of
caricature, satire, or parody, provided that such content does not cause
serious harm to personality rights.[4]
The Draft
Law also entrusts the supervision and enforcement of the legislation to a newly
established Deepfake Compliance Authority under the Danish Ministry of Culture.
The Situation in the European Union and the United States
In the
European Union, the AI Act[5]
introduces a framework for the classification of artificial intelligence
systems; however, there is not yet a specific protective norm dedicated
exclusively to deepfake content. Under the Act, only a transparency obligation
is imposed on deepfake materials. In this regard, it has now become mandatory
to label deepfake content.[6]
Another
relevant regulation in the European Union is the Directive on Copyright in the
Digital Single Market (2019/790)[7],
adopted on 17 April 2019. This directive makes it possible to treat digital
imitations created without the consent of the rightsholder within the framework
of related rights. Furthermore, Articles 3 and 4 of the directive safeguard the
rights of copyright holders in the context of text and data mining and content
production. Under this framework, the commercial use of content processed by
artificial intelligence requires prior authorization from the rightsholders.
In the
United States, deepfake content has been addressed at the federal level with
the enactment of the Take It Down Act (Tools to Address Known
Exploitation by Immobilizing Technological Deepfakes on Websites and Networks
Act)[8],
signed into law by Donald Trump on 19 May 2025. Under this Act, the
unauthorized distribution of deepfake-generated content has been criminalized
at the federal level[9].
In particular, higher maximum penalties have been prescribed for the
dissemination of unauthorized deepfake content involving minors, in order to
ensure stronger deterrence.
Possible Protection Mechanisms Regarding Deepfake Content Under Turkish Law
Although
there is no specific regulation on deepfake content in Turkey, certain
provisions of the Law on Intellectual and Artistic Works No. 5846 (FSEK) may be
applied by way of analogy.
In
particular, Article 25/2 of the FSEK should be examined in this context. The
provision reads as follows: “The author shall also have the right to
authorize or prohibit the distribution or presentation to the public of the
original or reproduced copies of his/her work by wired or wireless means, as
well as to authorize or prohibit the communication of the work to the public in
such a way that real persons may access the work from a place and at a time
individually chosen by them.”
This
article, which regulates the right of communication to the public, grants the
author the authority to permit or prohibit the accessibility of their work at
any place and time. In cases where a work is disseminated through the use of
deepfake technology, even though not expressly regulated, such dissemination
would constitute a violation of this provision.
Personal Rights and Deepfake
Within the
scope of the concept of audiovisual works defined in Articles 1/B and 2 of the
Law on Intellectual and Artistic Works (FSEK), deepfake content may be
considered a violation of personality rights when it involves the imitation of
distinctive elements such as an artist’s voice, face, or expressions.
Moreover,
Article 86 of the FSEK prohibits the public disclosure of pictures and
portraits without consent, even if they are not deemed works of art, thereby
serving the protection of personality rights.
The Court
of Cassation has also issued a decision finding a violation under Article 86 of
the Law on Intellectual and Artistic Works In a case where the plaintiff’s
photograph was unlawfully used in connection with a false news report about a
murder, the 11th Civil Chamber of the Court of Cassation held that personality
rights were violated under Article 86 of the Law on Intellectual and Artistic
Works and awarded moral compensation (11th Civil Chamber, E. 2019/1770, K.
2019/8230, 16.12.2019)[10].
This ruling demonstrates that, similarly, the dissemination of deepfake content
without consent would also constitute a violation of personality rights.
In
addition, the wording of Article 14/3 of the Law on Intellectual and Artistic
Works bears resemblance to that of the Draft Law and aims to protect the honor
and reputation of the author: “If the public disclosure or manner of
publication of the work is of a nature that would damage the author’s honor and
reputation, the author may prohibit the public disclosure or publication of
either the original or adapted version of the work, even if written consent has
been given to another person. Any waiver of this right of prohibition through
contract shall be null and void. The other party’s right to compensation is
reserved.”
Although
the provisions mentioned above do not explicitly regulate deepfake, it can be
argued that they provide indirect protection against such content.
Nevertheless, the inclusion of an explicit provision in the Law on Intellectual
and Artistic Works regarding deepfake content would be an important step toward
securing individuals’ rights and ensuring the protection of personality rights
in the digital age.
Possible Approaches in Turkish Legislation
In the age
of artificial intelligence, the protection of individuals’ digital
representations should be ensured not only as personal data but also as a form
of property right. In this respect, similar to the Danish example, Turkish law
also requires specific and direct regulations that safeguard a person’s
appearance, voice, and digital identity.
Through
supplementary amendments to the Law on Intellectual and Artistic Works (FSEK),
the introduction of explicit provisions requiring consent for the use of real
persons’ representations in digital environments would guarantee that copyright
and personality rights are secured at the same level of protection in the
digital sphere.
In
conclusion, the protection of intellectual property in the digital age
necessitates not only reliance on the classical concept of works but also the
establishment of new, individual-based protection mechanisms. In this context,
deepfake content emerges as a new form of infringement, making it imperative
for the law to undergo a parallel transformation in response to this change.
If you want
to know more about Artificial Intelligence Law reach out to our team or
NPartners: info@npartners.com.tr.
REFERENCES
| Nazlı Özkul | Elif Tanyeri |
| Founding Partner | Associate |
| M: +90 507 604 23 25 | M: +90 533 600 11 05 |
| nazli@npartners.com.tr | elif@npartners.com.tr |
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