Let the Chatbot Speak! Freedom of Expression and Synthetic Media

Abstract

ML-generated media (speech, image, etc.) can be used for many purposes such as robojournalism, therapeutic chatbots or the synthetic resuscitation of a dead actor or a deceased loved one. Can ML be a source of speech that is protected by the right to freedom of expression in Article 10 of the European Convention on Human Rights (ECHR)? I first discuss if ML-generated (or: "synthetic") media fall within the protective scope of freedom of expression (Article 10(1) ECHR). After concluding that this is the case, I look at specific complexities raised by ML-generated content in terms of limitations to freedom of expression (Article 10(2) ECHR). The first set of potential limitations that I explore are those following from copyright, data protection, privacy and confidentiality law. Some types of synthetic media could potentially circumvent these limitations. Second, I study how new types of content generated by ML can create normative grey areas where the boundaries of constitutionally protected and unprotected speech are not always easy to draw. In this context, I discuss two types of ML-generated content: virtual child pornography and fake news/disinformation. Third, I argue that the nuances of Article 10 ECHR are not easily captured in an automated filter and I discuss the potential implications of the arms race between automated filters and ML-generated content. In this context I discuss the newly adopted Digital Services Act (DSA) [1] and the recent (26 April 2022) judgement [2] of the ECJ (European Court of Justice) on automatic filtering of copyright-infringing content under Article 17 of the Directive on Copyright in the Digital Single Market (DSM Directive).