By Chiu-Hua Chen & Sherry Wu, Managing Partner & Associate of Formosan Brothers, Attorneys-at-Law

Sharing personal photos on the Internet has become part of everyone’s daily life in today’s world. However, this has led to numerous incidents of photos being stolen and then synthesized into other images. Lately, there occurred the incident of the Youtuber Xiao-Yu using Deepfake technologies to synthesize the faces of more than 100 female public figures into videos and sell them for profit, and the likeness of Ariel Lin, a Taiwanese actress, being synthesized into a picture of a mother holding a baby by a baby care product company for the sale of goods advertising. In addition, it is also common for some companies to deliberately use trademarks identical with or similar to other companies’ on identical or similar goods or services in order to piggyback on the reputation of the specific well-known companies . This can be deemed as identity theft against another company.
What are the legal actions that can be taken if one discovers that his or her own likeness has been stolen and synthesized into other images, or if a company discovers that its own trademark has been misappropriated? Based on current laws, the legal actions a victim may take include filing criminal complaints and civil lawsuits.

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Criminal Complaint
In the case of misappropriation of other’s face, if the composite image leads to a negative impact on the victim’s social status and reputation, for example, if the synthesized obscene image gives the impression that the victim is promiscuous, or if the synthesized dog abuse video gives the impression that the victim has violent tendencies, and the perpetrator sends such an image or video to a number of unspecific people, it may constitute aggravated defamation under criminal law.
In addition, theft of likeness to create composite images may also violate the Personal Data Protection Act. A victim’s face in a photo in which the victim can be identified is personal data. If the purpose of collecting photos of the victim’s face for composition does not meet the requirement of being “carried out in a way that respects the data subject's rights and interest, in an honest and good-faith manner,” the collecting act may violate Articles 19 and 20 of the Personal Data Protection Act for the crime of illegal collection and use of personal data by a non-government agency.
And if a company’s trademark is misappropriated on a product or service that is identical or similar, or if the perpetrator knowingly uses a similar trademark intending to cause confusion or misunderstanding on consumers, it may constitute the criminal liability of trademark infringement.

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Civil lawsuit
For civil liability, this type of composite photo may infringe on the victim’s rights of likeness and reputation. The rights of likeness and reputation are both personality rights protected by Article 18 of the Civil Code. The victim may ask the court to order the perpetrator to remove the infringement (e.g., removing the image) and may demand compensation pursuant to Paragraph 1 of Article 195 of the Civil Code, as well as demanding the taking of proper measures for the rehabilitation of his reputation (e.g., asking to publish an apology on certain websites).
In addition, if the victim doesn’t want such image to continue existing on the Internet during the civil proceedings, at the time the case is filed, he/she may also move for a “provisional injunction maintaining a temporary status quo,” asking the court to temporarily remove the infringement before the judgment is final (e.g., taking the video off the Internet), or move for a “provisional injunction” (e.g., rendering an order against selling the video).

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In the case of misappropriation of a company’s trademark, the company may ask the court to order the perpetrator from using the trademark and may claim to destroy infringing products and related material or implements used to carry out the infringement. If the company suffers actual damage from the trademark infringement, it may also claim damages against the perpetrator.
Lastly, we would like to share a little tip: usually, the perpetrator will delete the post when they find that they are being sued. In order to prevent lack of evidence due to evidence being destroyed during the subsequent civil or criminal proceedings, the victim may get a notary public to conduct an experience notarization as soon as possible after discovering the photos have been misappropriated to prove that such image/video actually existed on the Internet at a certain time.

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As for a company whose trademark is misappropriated, in order to prevent the risk that the perpetrator may destroy the infringing products, the company may purchase the perpetrator’s infringing products or keep a copy of the relevant advertisement and have a notary public conduct an experience notarization with respect to the process of purchasing the product or obtaining the advertisement. These notary reports will become part of the evidence for civil or criminal proceedings later.

(This article was published in the Expert’s Commentary Column of the Commercial Times：https://view.ctee.com.tw/legal/33944.html）

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