Can my voice be used without my consent, by someone else or by AI?

Following the news that YouTube is making an AI tool available for using the voices of well-known singers, the question occurred to me: how far is your voice protected, and do you have a right to it?

To answer that, we first need to establish whether you have any rights in your voice, and if so which. A voice is not protected by copyright (it is not a “literary, scientific or artistic work”) and nor is it protected under the Dutch Neighbouring Rights Act (there is, after all, no performance of a copyright work, nor a performance by the person whose voice it actually is).

Attempts have been made to equate a voice with a portrait. You can recognise someone by their voice too, can you not? Those attempts failed. A portrait, protected under image rights, is a depiction of the face. A voice is not a depiction (and not a face).

So is a voice not protected at all? Can you simply use someone else’s voice?

Well, no.

A voice is biometric personal data, and the GDPR applies to biometric personal data. You may only process personal data where you have a lawful basis under the GDPR, consent being one of them. However, under article 43 of the Dutch GDPR Implementation Act read together with article 85 of the GDPR, much of the GDPR does not apply in the Netherlands to the processing of personal data solely for journalistic, academic, artistic or literary purposes.

Where a documentary, television programme or film is involved, that provision is readily invoked.

So is a voice entirely up for grabs?

Well, no. Two further lines of defence remain.

The person with the voice (a right to a voice does not exist) can rely on the protection of their private life, a fundamental right guaranteed by the European Convention on Human Rights (article 8 ECHR). But the user of the voice can then rely in turn on their own fundamental rights, such as freedom of expression (article 10 ECHR) and freedom of the arts (article 13 of the Charter of Fundamental Rights of the European Union).

Put briefly, and rather bluntly for the purposes of this blog: you need a sufficiently weighty interest to set aside someone else’s freedom of expression and artistic expression in order to deny them your voice.

The second line of defence is tort. Using someone else’s voice can be a wrongful act towards the person whose voice it is. In practice there turns out to be more sympathy for that where the other person’s voice is used for commercial purposes. The Dutch courts once put it this way:

‘The starting point is that in our society no one should have to tolerate their personal characteristics being used against their will in support of another party’s commercial activities. The objection to being associated with someone else’s commercial activities is in itself sufficient justification for an injunction. Such unauthorised use by another already constitutes an intrusion into private life.’

But it is important to appreciate that you will then have to advance more than the points that already feature in the earlier assessments, and in particular more than features in the balancing of the competing fundamental rights.