8 July 2025
Inaugural Hellenic Lawyers Congress
Athens
AI and Democracy: Legal Accountability, Ethical Considerations and Regulatory Challenges Posed by Machine Technologies Without Borders
The Hon Justice Melissa Perry
INTRODUCTION
The slave Sicinnus pushed his little boat into the rippling dark waters of the bay.  While a Persian captive, Sicinnus loved his Athenian master and was embarking upon a mission at his master’s behest of the gravest urgency and secrecy.  The glowing lights of over 300 Greek triremes under the command of the Spartan nobleman, Eurybiades, and the sounds of the soldiers on board were soon left far behind.  Ahead lay a far greater force of mightier ships under the command of the Persian King, Xerxes, continuing his father, Darius’, war against the Greeks.  Praying to the god of messengers, Hermes, for his safe passage, the message which Sicinnus repeated softly under his breath as he approached the Persian fleet was to counsel Xerxes that the Greeks were ready to flee and, if the Persian force were to hinder their flight and set upon them in their confusion, all of the Greek forces by sea could be destroyed.  
Sicinnus’ message was received joyfully by Xerxes for the message was one which he truly wanted to hear.  Xerxes did not heed the warning of Queen Artemisia of Caria that “Their men are as much stronger than your men by sea as men are stronger than women” and that he should spare his ships and not fight at sea.  Xerxes immediately issued instructions to his commanders.  But there was never any intention for the Greek ships to flee, only to make their preparations for battle.  And so, from the hill upon which he sat at dawn above the ensuing battle, Xerxes watched a terrible defeat as his massive fleet of heavy ships were drawn into the narrow Straits of Salamis to face the battle-ready, nimble Hellenic fleet.  The key to the decisive victory of the Hellenic fleet has thus long been attributed to the courage of a loyal slave and the calculated subterfuge of his master, Themistocles.
As this famous example illustrates, disinformation has long been a weapon for influencing State action and outcomes.  It also illustrates how human beings are susceptible to accepting disinformation or fake news through manipulation, especially when it accords with what we want to hear.  
In such respects, we, as humans, have not fundamentally changed.  We share universal traits and flaws with our ancestors.  However, the forms in which disinformation can be presented, the speed by which it can be conveyed, and the scale of the audience to whom it can be conveyed, have changed exponentially.  This is not only because of the development of machine technologies such as generative AI to produce believable text, images, audio and video.  It is also due to the means by which we communicate in modern times which effectively supercharge the spread of misinformation and disinformation to levels never before within the contemplation of humankind.  It is how these factors in combination pose great potential risks to democracies, the rule of law, and human rights that I wish to explore, drawing upon analogies with classical Greece as seemed appropriate in this beautiful and ancient city where democracy was born. 
EARLY STEPS IN THE EVOLUTION OF AN INTERCONNECTED WORLD 
A burning torch was held aloft from a high hill and lowered swiftly when answered by another flame from a distant hill.  At that point, the messengers at both locations simultaneously opened the taps on identical cylinders, causing in each case a rod fed through a cork to descend as the water level lowered.  Each rod was divided into equal parts and inscribed with the same pre-arranged messages such as “Enemy on sight” and “Infantry in action”.  In this case, the message to be sent was “Cavalry attack”.  Upon that message on the rod reaching the rim of the cylinder, the torch was again held aloft, the taps in both places simultaneously closed, and the message was thereby conveyed. 
This ingenious device described as a hydraulic telegraph is quite possibly the first telecommunications device.  Its inventor was Aeneas Tacticus, who wrote on the art of war in the 4th century BC. Its purpose was to enable pre-arranged messages to be conveyed across the vast empire of Alexander the Great. 
The origins of global communication today are to be found in mid to late 19th century.  At this time, submarine telegraph cables were laid across vast distances connecting continents and enabling communications, for example, from Port Darwin in the north of Australia and the rest of the world to be bridged in a matter of hours instead of months.  Australians embraced this new technology, sending, by the late 1890s, more telegrams per person than any other country.  This is despite each word costing the equivalent of a day’s wage for a labourer.  Their messages were translated into the combination, known as morse code, of dots, dashes and spaces representing letters of the alphabet and numbers, and were transmitted as electrical impulses to be decoded at the other end.  
Ensuring that the lines of communication opened by this transformative new technology were protected required international cooperation.  The cables crossed vast oceans to connect different nations and their then colonies around the globe.  On 14 March 1884, the Convention for the Protection of Submarine Telegraph Cables (1884 Convention) was signed in Paris, coming into force not long thereafter in 1888.  Its parties included Russia, the United States, France, Greece, Sweden and Norway.  The United Kingdom was also a party and the 1884 Convention thereby applied to its then colonies on the Australian continent.  
The emphasis in the 1884 Convention was upon protecting the submarine cables, with the Convention declaring that it was an offence to wilfully or negligently break or injure a submarine cable (Article II).  Article X in turn afforded rights to officers of State parties to require another vessel suspected of committing an infraction to furnish evidence of its nationality, and offences were expected to be prosecuted domestically by the State parties under locally enacted laws. 
Today over 98 percent of the world’s data travels at speeds exceeding 25 terabytes per second along almost 600 submarine cables connecting all continents, with the exception of Antarctica, and spanning the Atlantic and Pacific oceans.  Australia currently owns or operates approximately 400,000km of these cables – sufficient, as one commentator has observed, to lap the world ten times over.  Further, some of these cables have been laid thousands of metres below the surface of the ocean, with the cable which connects Australia to Guam crossing the deepest trench on earth.  These cables may also soon be used in conjunction with quantum technology, thereby delivering “completely secure, unhackable lines of communication”.  Further, the players in this global infrastructure are changing with major tech companies such as Google, Amazon, Meta and Microsoft now entering upon the scene and constructing their own privately owned cables.
While the 1884 Convention remains in force, the protection of submarine cables and the freedom to lay and operate cables came to be primarily governed by the 1958 Geneva Conventions on the High Seas and the Continental Shelf, and in time by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).  While the United States is not a party, there are 170 State parties to UNCLOS including China, the Russian Federation, the EU, the UK and Australia.  
Significantly, Article 113 of UNCLOS requires every State to adopt laws making it a punishable offence to break or injure submarine cables beneath the high seas, either wilfully or through culpable negligence.  UNCLOS also requires States to adopt laws and regulations to reimburse persons whose cable was broken or injured by someone who is subject to that State’s jurisdiction.
Damage caused to undersea optic fibre cables from the anchor of a cargo ship allegedly attacked by Yemeni Houthi rebels in the Red Sea in February 2024 is an example of such risks, and highlights, as one commentator has said, “the complex interplay between geopolitical conflicts and the security of global internet infrastructure”.  Of long term concern are also recent reports of Russian naval activity in the vicinity of Western submarine cables, given Russia’s maritime capacity through its deep diving submarines to sever cables at depths where repairs would be extremely difficult, as well as Russia’s capacity to tap undersea cables.  
With over $US10 trillion in financial transactions, commercial payments, and trade operations undertaken via the internet globally every day, “[a]ny significant damage to [the global network of submarine cables] would threaten global trade, military readiness, logistics, and Internet connectivity”, as one commentator has observed.  Yet despite their critical geopolitical importance and inherent vulnerability, it is only in light of recent incidents affecting these cables, suspected mapping activities by foreign actors of submarine cables, and an environment of heightened international conflict, that the international community, and European governments in particular, have come to focus upon this as a matter of grave concern.  
As these matters illustrate, real and immediate questions arise about the adequacy of existing international mechanisms for the protection of this vital, but invisible, infrastructure.  As Fabrizio De Leonardis recently emphasised in his analysis of the subject:
These attacks underscore the need to enhance the security of critical underwater infrastructure by implementing advanced protection measures and defence strategies to prevent future acts of sabotage.  International cooperation and constant surveillance of submarine routes is essential to ensure security and stability in the region, especially in the context of increasing geopolitical tensions. 
RECENT TECHNOLOGICAL DEVELOPMENTS AND CHALLENGES 
While regulatory systems exist under international law for the protection of submarine cables, what is the position with respect to regulating the information which they transmit?  
For politicians and orators in ancient Greece, rhetoric and persuasion were expertly employed as tools for the manipulation of public opinion, drawing upon an astute understanding of human nature and emotions and an astute use of language.  While human nature and emotional states have not fundamentally changed, the means of manipulation now available to be employed have.  Deepfakes “utilize a form of artificial intelligence/machine learning (AI/ML) to create believable, realistic videos, pictures, audio, and text of events which never happened” and take the capacity to manipulate events to an entirely new level.  They thereby facilitate the creation of misinformation and disinformation for distribution potentially to a global audience.  This in turn, as the ABA Taskforce for American Democracy has recently explained, “can distort reality, undermine trust, and destroy reputations, with potentially dire consequences for democratic processes”.
First, deepfake software now freely available online has the capacity to manipulate videos and recordings based on training from photographs, recordings and videos readily accessible on the internet such as on news sites, social media accounts and potentially live streaming of court proceedings.  Improvements in deepfake technology also mean that it can be very difficult to differentiate between deepfakes and real audio recordings, photographs and videos.  These difficulties are particularly acute currently with respect to face swap software and fake audio recordings.  Reportedly, for example, in September last year an “actor” used deepfake software to impersonate a Ukrainian diplomat in a pre-arranged Zoom call with a US Senator.  So convincing was the deepfake that the US Senator became suspicious only when the actor acted out of character and started asking “politically charged questions in relation to the upcoming election”.
Secondly, the problem is not merely identifying the deepfake; it can be in believing what is real.  In other words, as one commentator has observed, “[t]he problem may not be so much the faked reality as the fact that real reality becomes plausibly deniable.”  This has also been described as the “‘liar’s dividend’, in which an increase in manipulated content leads to general skepticism of all media and makes it easier for people such as politicians to dismiss authentic images, audio or video as fake”.  
Thirdly, the risks posed by deepfakes to spread misinformation and disinformation are amplified by the environment in which modern communication takes place.  Multiple terabits of data are transferred every second via communication highways comprising approximately 900,000 miles of submarine cables and approximately 8000 telecommunications satellites.  Added to this, social media, news and other platforms facilitate the mass transmission of information, misinformation and disinformation globally by the roughly 5.6 billion internet users worldwide.  Furthermore, the ability to disseminate deepfakes en masse through multiple information sources makes them appear to be more credible and therefore more likely to be accepted as true.  The algorithms in search engines also create echo chambers, reinforcing views of users based on preferences disclosed by their past browser history and giving us, like the message from Themistocles to Xerxes, the information that we think we want to hear.  
The increasing inability to differentiate between what is real and what is not is particularly chilling given existing conflicts and expanding foreign influence utilising AI.  Indeed, the Global Risks Report 2025 by the World Economic Forum placed misinformation and disinformation as the top global risk in 2025 for the second year in a row. 
For example, in September last year the US Departments of Justice, State and Treasury announced co-ordinated actions to “aggressively counter” an extensive campaign by Kremlin-backed media executives and broadcasters to interfere with the then pending Presidential elections.  One of the fake reports prompting this action may well have been the false report of the Ukrainian First Lady purchasing a rare sportscar with monies sourced from American military aid while vising Paris for D-Day commemorations.  The story was picked up on social media by influencers and reportedly viewed by 6.5m people from the account of one X user and at least 12 million people from other accounts. 
The international community, through a number of recent instruments, has recognised the urgent need to combat misinformation, disinformation, and hate speech facilitated by these new technologies in order to safeguard democratic systems and practices, human rights, and the rule of law.  In launching the Global Principles for Information Integrity in June last year, the UN Secretary General, Antonio Guterres, emphasised the “grave harm to our world” through the spread of hatred and lies online, including putting UN humanitarian and peacekeeping operations at risk.  
The Bletchley Declaration signed last year by 27 States, including the UK and Australia, also expressly noted “the potential for unforeseen risks stemming from the capability to manipulate content or generate deceptive content”, and emphasised the urgent need to address those risks.  In turn, the EU AI Act which came into force in August 2024 and the Council of Europe’s AI Framework Convention which opened for signature in September 2024, identify potential risks and adverse impacts posed by AI to democratic processes, the rule of law and human rights as high.  Both instruments require measures to be taken or implemented to assess and mitigate these and other high risks and adverse impacts throughout the lifecycle of AI systems.  
CONCLUSION
From the ingenuity of the hydraulic telegraph, to a starry night sky littered with telecommunications satellites, and hundreds upon hundreds of submarine cables spanning the vast oceans and seas of the globe:  how are we as individuals, as institutions, and as members of the international community, to grapple with and respond to this rapidly changing world?  
The world has never been so interconnected and arguably, people never so disconnected, as news and opinions circulate within the echo chambers of browser algorithms and social media.  This interconnectedness for humanity carries with it risks of great harm by amplifying the impact of misinformation and disinformation particularly at a time of heightened international conflicts and tensions.  It is therefore clear that urgent international collaboration, information exchange and the development of applicable standards is needed to ensure that developments in technology are applied for the betterment of humankind, while safeguarding our democratic systems and promoting global peace and security.  We must be swift of foot, like the Messenger God Hermes of Ancient Greece, in ensuring that this message is heard.