As artificial intelligence is used more and more to craft advertising and promotional material, misleading images could lead Australian companies into a costly legal minefield.
Images either created or enhanced by artificial intelligence are becoming common in advertising, particularly in online spaces; however, legal experts warn that the practice could cross an expensive line.
Under the Australian Consumer Law, businesses found to have engaged in deceptive or misleading conduct could face penalties of up to $100 million, while individuals could cop fines of up to $2.5 million, depending on the severity of the infraction.
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“AI photo editing is not illegal in itself. The legal issue arises when edited images misrepresent a product or service and mislead consumers,” Avinash Singh, principal lawyer at Astor Legal, said.
“Section 18 of the Australian Consumer Law prohibits misleading or deceptive conduct in trade or commerce, while section 29 also prohibits businesses from making false or misleading representations about a product’s characteristics, quality or benefits.”
While the penalties for employing misleading content are tangible, the line between image enhancement and outright deception is less defined, however.
“Whether an AI-enhanced image crosses the line into misleading or deceptive conduct will depend on the circumstances of each case,” Singh said.
“As a general rule, if an AI-generated image presents a product as having features, quality or benefits that it does not actually have, or if the final image is materially different from the product a consumer receives, there is a real risk the advertising will breach Australian Consumer Law.”
And while breaching consumer law is bad enough, according to Singh, seriously blatant use of misleading AI images could even lead to criminal charges.
“If prosecutors can prove beyond a reasonable doubt that a person knowingly used AI to misrepresent a product, intended to deceive consumers and obtain a financial advantage, the conduct could potentially be treated as fraud,” Singh said.
Singh recommends that Australian businesses ensure they use AI only to enhance images, not to fundamentally change what they represent.
“Businesses should be able to demonstrate that any AI-generated or AI-enhanced marketing accurately reflects the product being sold and does not create false expectations for consumers,” Singh said.
“There is currently no legal obligation for businesses to tell consumers when AI has been used to create or enhance marketing images. Australia’s consumer laws were developed before generative AI became widespread, and they do not specifically address the unique risks AI-generated advertising now presents.”
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David Hollingworth
David Hollingworth has been writing about technology for over 20 years, and has worked for a range of print and online titles in his career. He is enjoying getting to grips with cyber security, especially when it lets him talk about Lego.